Antonio Cruz-Arredondo v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
OCT 15 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO CRUZ-ARREDONDO, No. 20-71039
Petitioner, Agency No. A073-816-233
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2021**
Portland, Oregon
Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
Antonio Cruz Arredondo (“Cruz”) petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) holding that he is ineligible for
cancellation of removal, and denying 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(a)(1), and we deny the petition.
1. Cancellation of Removal: The BIA correctly found that Cruz is ineligible
for cancellation of removal because he failed to complete the diversion program for
his 2000 California drug possession conviction. A noncitizen is ineligible for
cancellation if he was “convicted of . . . a violation of . . . any law . . . relating to a
controlled substance.” 8 U.S.C. § 1182(a)(2)(A); see also id. § 1229b(b)(1)(C).
While a state drug possession conviction normally qualifies as a conviction under
this provision, there is a limited exception if the conviction (1) occurred prior to
2011, (2) was expunged under state law, and (3) could, if charged as a federal
crime, have been expunged under the Federal First Offender Act (“FFOA”). See
Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000), overruled
prospectively by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc).
But a conviction cannot be expunged under the FFOA when a defendant violates a
condition of his probation, as Cruz did when, in January 2001, he failed to
complete his diversion program. See Estrada v. Holder, 560 F.3d 1039, 1041–42
(9th Cir. 2009), overruled on other grounds by Mellouli v. Lynch, 135 S. Ct. 1980(2015); 18 U.S.C. §§ 3607(a), 3565. Cruz’s deferred judgment therefore is a
“conviction” under 8 U.S.C. § 1182(a)(2)(A) rendering him ineligible for
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cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C).
2. Withholding of Removal: Substantial evidence supports the BIA’s denial
of withholding under 8 U.S.C. § 1231(b)(3) because Cruz did not establish that he
was a member of a cognizable particular social group. Cruz argues that he will be
persecuted in Mexico based on his membership in two groups: (1) people who
have had family members killed by cartels in Mexico, or (2) people who have
defied cartels. But the BIA concluded that Cruz failed to establish that these
groups satisfied the particularity or social distinction requirements. Cruz produced
little evidence that society views either group as socially distinct. See Diaz-Torres
v. Barr, 963 F.3d 976, 980–81 (9th Cir. 2020). At least where the petitioner does
not produce evidence as to how society views these groups, we have rejected
similar groups as lacking social distinction and/or particularity. See, e.g.,
Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) (rejecting “minor
Christian males who oppose gang membership” on these bases).
3. CAT Protection: Substantial evidence also supports the BIA’s denial of
CAT protection because Cruz did not show that “each step in the hypothetical
chain of events [leading to his torture] is more likely than not to occur.” See 8
C.F.R. § 1208.16(c)(2). In the early 1990s, when Cruz’s family resisted the
demands of the wealthy Lopez family affiliated with the Sinaloa cartel, the
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Lopezes murdered his cousin Marco. After Cruz’s brother Armando was accused
of stealing some of the Lopezes’ cows, he fled and was never heard from again.
Cruz himself was threatened with death. Cruz came to the United States in 1996.
Although Cruz presented evidence that cartel members generally maintain
longstanding grudges, he provided no evidence that the cartel members in his town
likely now bear a grudge toward him. See Delgado-Ortiz v. Holder, 600 F.3d
1148, 1152 (9th Cir. 2010) (explaining that “generalized evidence of violence” in a
country is insufficient to establish eligibility for CAT protection). Cruz’s sister
lives two hours away from their hometown and she has not been harmed. Cruz and
his sister do not discuss the cartels, so he has little specific information about the
situation in the town. Substantial evidence supports the BIA’s conclusion that
Cruz did not show it is more likely than not that the cartel members will locate
him, recognize him, remember that he opposed the cartel, and torture or kill him.
PETITION DENIED.
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