Jose Uitz-Gongora v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE CANDELARIO UITZ-GONGORA, No. 19-71228
AKA Jose Candelarlio-Utiz,
Agency No. A206-356-777
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Jose Candelario Uitz-Gongora, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for withholding of
removal and relief under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review de novo the legal question of
whether a particular social group is cognizable, except to the extent that deference
is owed to the BIA’s interpretation of the governing statutes and regulations.
Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review for
factual findings for substantial evidence. Id. at 1241. We deny the petition for
review.
The BIA did not err in concluding that Uitz-Gongora failed to establish
membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,
1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social
group, “[t]he applicant must ‘establish that the group is (1) composed of members
who share a common immutable characteristic, (2) defined with particularity, and
(3) socially distinct within the society in question’” (quoting Matter of M-E-V-G-,
26 I. & N. Dec. 227, 237 (BIA 2014))); see also Ramirez-Munoz v. Holder, 816
F.3d 1226, 1229 (9th Cir. 2016) (concluding “imputed wealthy Americans”
returning to Mexico did not constitute a particular social group); Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (concluding “returning Mexicans
from the United States” was overbroad and did not constitute a particular social
group).
Substantial evidence supports the determination that Uitz-Gongora otherwise
failed to demonstrate a nexus between the harm he experienced or fears in Mexico
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and a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(an applicant’s “desire to be free from harassment by criminals motivated by theft
or random violence by gang members bears no nexus to a protected ground”);
Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (political opinion claim failed
where petitioner did not present sufficient evidence of political or ideological
opposition to the gang’s ideals or that the gang imputed a particular political belief
to the petitioner).
Thus, Uitz-Gongora’s withholding of removal claim fails.
Substantial evidence also supports the BIA’s denial of CAT relief because
Uitz-Gongora failed to show it is more likely than not he would be tortured by or
with the consent or acquiescence of the government if returned to Mexico. See
Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of
torture).
The record does not support Uitz-Gongora’s contentions that the IJ and BIA
failed to consider evidence, ignored arguments, or otherwise erred in their analyses
of his claims. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the
BIA need not write an exegesis on every contention); Fernandez v. Gonzales, 439
F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the presumption that the
BIA reviewed the record).
As stated in the Court’s July 29, 2019 order, the temporary stay of removal
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remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
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