Osorio-Gutierrez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ARMANDO OSORIO-GUTIERREZ, No. 22-244
Agency No.
Petitioner, A095-730-180
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 15, 2023**
Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
Luis Armando Osorio-Gutierrez petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision dismissing his appeal of the
Immigration Judge’s (“IJ”) denial of Osorio-Gutierrez’s applications for
withholding of removal and relief under the Convention Against Torture
(“CAT”). Osorio-Gutierrez also appeals the BIA’s denial of his motion to
*
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).
terminate proceedings for alleged deficiency of a Notice to Appear (“NTA”).
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review questions of law de novo and the agency’s factual findings for
substantial evidence. See Vilchez v. Holder, 682 F.3d 1195, 1198–99 (9th Cir.
2012).
1. Osorio-Gutierrez first argues that his NTA was deficient because it
lacked the date, time, and location of the hearing, which deprived the IJ of
jurisdiction. That argument is foreclosed by United States v. Bastide-
Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc).
2. Substantial evidence supports the IJ’s denial of withholding of
removal. “To secure withholding of removal, a petitioner must demonstrate that
his ‘life . . . would be threatened in that country because of [his] race, religion,
nationality, membership in a particular social group, or political opinion.’”
Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (as amended) (quoting
8 U.S.C. § 1231(b)(3)(A)). Assuming that Osorio-Gutierrez did not waive any
arguments regarding the cognizability of his proposed social groups,1
“Guatemalans who are victims of gang violence” is not a cognizable social
group. See Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (finding that
“victimiz[ation] [] for economic and personal reasons” does not constitute a
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The government’s argument that Osorio-Gutierrez’s alleged failure to exhaust
deprives this court of jurisdiction is foreclosed by Santos-Zacaria v. Garland,
143 S. Ct. 1103 (2023).
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cognizable particular social group). Although the social group “landowner” may
form the basis of a particular social group, see Cordoba v. Holder, 726 F.3d
1106, 1114–15 (9th Cir. 2013), as the IJ noted, “[r]espondent has not submitted
any evidence to show that he actually owns the land his business operates on . .
.” Nor has Osorio-Gutierrez shown that he is a member of the group
“individuals taking concrete steps to oppose gangs” because filing a police
report does not rise to the level of public action that membership in the group
requires. Matter of H-L-S-A-, 28 I. & N. Dec. 228, 237 (BIA 2021). Thus, the
record does not compel the conclusion that Osorio-Gutierrez established
membership in a cognizable social group.
3. Substantial evidence supports the BIA’s denial of Osorio-Gutierrez’s
CAT claim. “To establish entitlement to protection under CAT, an applicant
must show ‘it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.’” Plancarte Sauceda v. Garland,
23 F.4th 824, 834 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.16(c)(2)). To meet
that standard, the applicant must “demonstrate ‘a chance greater than fifty
percent that he will be tortured’ if removed to” Guatemala. Castillo v. Barr, 980
F.3d 1278, 1283 (9th Cir. 2020). Additionally, the torture 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.” Zheng v. Ashcroft, 332 F.3d 1186,
1188 (9th Cir. 2003) (quoting 8 C.F.R. § 208.18(a)(1) (2002)) (emphasis and
internal quotation marks omitted). Although gang members beat Osorio-
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Gutierrez twice, the record here does not compel the conclusion that Osorio-
Gutierrez, if returned to Guatemala, will more likely than not be tortured with
the government’s acquiescence.
PETITION DENIED.
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