Griselda Hernandez MacArio 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NOT FOR PUBLICATION FILED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
GRISELDA ELIZABETH HERNANDEZ No. 19-71437
MACARIO; et al.,
Agency Nos. A209-129-478
Petitioners, A209-129-479
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.
Griselda Elizabeth Hernandez Macario and her minor daughter, natives and
citizens of Guatemala, petition for review of the Board of Immigration Appeals’
(“BIA”) order dismissing their appeal from an immigration judge’s decision
denying their applications for asylum, withholding of removal, and relief under the
*
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).
Convention Against Torture (“CAT”). We have 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 factual findings for substantial
evidence. Id. at 1241. We deny the petition for review.
The BIA did not err in concluding that petitioners’ proposed social groups
lacked particularity. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in
order to demonstrate membership in a particular 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 Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091 (9th
Cir. 2013) (as to particularity, “[t]he ultimate question is whether a group can
accurately be described in a manner sufficiently distinct that the group would be
recognized, in the society in question, as a discrete class of persons” (citations and
internal quotation marks omitted)); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229
(9th Cir. 2016) (proposed social group was not cognizable, where it could not “be
described with passable distinction that the group would be recognized as a
discrete class of persons”). The record does not support petitioners’ contention
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that the BIA erred in its cognizability analysis.
Substantial evidence supports the determination that petitioners did not
otherwise establish that the harm they experienced or fear was or would be on
account of 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”).
Thus, petitioners’ asylum and withholding of removal claims fail.
Substantial evidence supports the BIA’s denial of CAT relief because
petitioners failed to show it is more likely than not they would be tortured by or
with the consent or acquiescence of the government if returned to Guatemala. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We reject petitioners’
contention that the BIA failed to consider evidence or otherwise erred in its
analysis of their CAT claim. See Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th
Cir. 2000) (applicant failed to overcome the presumption that the BIA reviewed the
record evidence).
The temporary stay of removal remains in place until issuance of the
mandate. The motion for a stay of removal (Docket Entry Nos. 1, 5) is otherwise
denied.
PETITION FOR REVIEW DENIED.
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