Opinion
No. 17-72114
05-11-2020
ANDRES DIAZ-VAZQUEZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A205-490-717 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Andres Diaz-Vazquez, 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"). Our jurisdiction is governed by 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. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.
The record does not compel the conclusion that Diaz-Vazquez applied for asylum within a reasonable time of any changed or extraordinary circumstances as to excuse the untimely filing of his asylum application. See 8 C.F.R. § 1208.4(a)(4), (5); see also Toj-Culpatan v. Holder, 612 F.3d 1088, 1091-92 (9th Cir. 2010).
We lack jurisdiction to consider Diaz-Vazquez's contention that the delay in filing his asylum application was due to court scheduling because he failed to raise it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).
Thus, Diaz-Vazquez's asylum claim fails.
The agency did not err in finding that Diaz-Vazquez failed to 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, 1059-60 (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); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (concluding "returning Mexicans from the United States" did not constitute a particular social group).
Substantial evidence supports the agency's determination that Diaz-Vazquez otherwise failed to demonstrate that the harm he fears in Mexico 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, Diaz-Vazquez's withholding of removal claim fails.
Substantial evidence also supports the agency's denial of CAT relief because Diaz-Vazquez failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).
We do not consider the materials Diaz-Vazquez references in his opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc) (court's review is limited to the administrative record).
The record does not support Diaz-Vazquez's contentions that the BIA failed to consider evidence or otherwise erred in its analysis of his claims. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency need not write an exegesis on every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the presumption that the BIA reviewed the record).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.