Alonso-Castenada v. Garland ( 2023 )

FILED
NOT FOR PUBLICATION JUN 26 2023
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ALBERTO ALONSO- No. 21-231
CASTENADA,
Agency No. A200-626-073
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2023**
Pasadena, California
Before: BYBEE and CHRISTEN, Circuit Judges, and FITZWATER,*** District
Judge.
*
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).
***
The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
Oscar Alberto Alonso-Castenada (“Alonso-Castenada”), a citizen of Mexico,
petitions for review of a decision by the Board of Immigration Appeals (“BIA”)
denying his motion to reopen pursuant to 8 C.F.R. § 1003.2(c)(3)(ii). We have
jurisdiction under 8 U.S.C. § 1252. See Kucana v. Holder, 558 U.S. 233, 253 (2010).
Reviewing the agency’s factual determinations for substantial evidence and legal
questions de novo, see Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citing
Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005)), we deny the petition.
1. The BIA properly concluded that Alonso-Castenada failed to establish prima
facie cases of eligibility for asylum and withholding of removal because he failed to
establish membership in a cognizable social group. “An asylum or withholding
applicant’s burden includes (1) demonstrating the existence of a cognizable particular
social group, (2) his membership in that particular social group, and (3) a risk of
persecution on account of his membership in the specified particular social group.”
Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (internal quotation marks
omitted). “[I]t is now well-established that an applicant seeking relief based on
membership in a particular social group 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.’”
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077 (9th Cir. 2020) (quoting Matter of
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M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)). “Under the BIA’s established
standards, social groups must be determined on a case-by-case basis.” Id. at 1080(quotations and citations omitted). Although Alonso-Castenada asserts membership
in social groups consisting of individuals with past criminal history or individuals who
testify against smugglers, the BIA properly concluded that Alonso-Castenada failed
to meet his burden of establishing membership in a cognizable social group, and thus
has failed to establish prima facie cases of eligibility for asylum and withholding of
removal.
2. The BIA properly concluded that Alonso-Castenada failed to establish a
prima facie case of eligibility for protection under the CAT. To qualify for protection
under the CAT, “[t]he burden of proof is on the applicant . . . to establish that it is
more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2) (2022). “To qualify as torture, actions
must be ‘inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.’” Nasrallah v. Barr, 140
S.Ct. 1683, 1688 n.1 (2020) (quoting 8 C.F.R. § 1208.18(a)(1) (2019)). Although
“country conditions alone can ‘play a decisive role in granting relief under [CAT],’”
Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir. 2005) (alteration in original)
(quoting Kamalthas v. I.N.S., 251 F.3d 1279, 1280 (9th Cir. 2001)), “generalized
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evidence of violence and crime” in the country of removal that is not particular to the
petitioner is an insufficient basis for granting such relief. Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam).
Although Alonso-Castenada maintains “that there has been an increasing rate
of homicides in Mexico since he was last before the Immigration Court, and that the
Mexican government has demonstrated an unwillingness or inability to adequately
protect its citizens,” he has provided only generalized evidence of an increase of
violence and crime in Mexico, and has presented no evidence particular to himself by
which the BIA could concluded that he more likely than not will face torture inflicted
by or with the consent of the Mexican government. Therefore, the BIA properly
concluded that Alonso-Castenada failed to establish eligibility for protection under the
CAT.
PETITION DENIED.
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