Opinion
No. 17-70688
04-13-2020
DONACIANO CRUZ-BAUTISTA, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A098-016-185 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Donaciano Cruz-Bautista, 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 applications for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"), and his request for administrative closure. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA's interpretation of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the agency's factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny the petition for review.
The record does not compel the conclusion that Cruz-Bautista established changed or extraordinary circumstances to excuse his untimely asylum application. See 8 C.F.R. § 208.4(a)(4)-(5). Thus, Cruz-Bautista's asylum claim fails.
The BIA did not err in finding that Cruz-Bautista did not 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 Barbosa v. Barr, 926 F.3d 1053, 1060 (9th Cir. 2019) (finding that individuals returning to Mexico from the United States who are believed to be wealthy does not constitute a particular social group). Substantial evidence supports the agency's conclusion that Cruz-Bautista otherwise failed to establish he was or would be persecuted 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, Cruz-Bautista's withholding of removal claim fails.
In his opening brief, Cruz-Bautista does not challenge the agency's denial of CAT relief. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party's opening brief are waived). Thus, we deny the petition for review as to Cruz-Bautista's CAT claim.
Cruz-Bautista establishes no error in the agency's denial of administrative closure under the factors applicable at the time of the hearing. See Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 891 (9th Cir. 2018).
Finally, Cruz-Bautista's contentions that the BIA violated his right to due process by summarily affirming his case fail. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-52 (9th Cir. 2003); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).
PETITION FOR REVIEW DENIED.