Opinion
20-73504
10-13-2022
GUSTAVO GARCIA-ZUNIGA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 11, 2022 [**] Honolulu, Hawaii
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A092-993-189
Before: SCHROEDER, RAWLINSON, and BRESS, Circuit Judges.
MEMORANDUM [*]
Gustavo Garcia-Zuniga, a citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal of an Immigration Judge (IJ) order denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.
The IJ found that Garcia-Zuniga's asylum application was untimely, and Garcia-Zuniga did not challenge that determination either before the BIA or this court. The claim is therefore forfeited. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
1. The BIA did not abuse its discretion in determining that Garcia-Zuniga's sexual battery conviction was for a particularly serious crime, rendering him ineligible for withholding of removal. 8 U.S.C. § 1231(b)(3)(B)(ii); see also Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) ("We have jurisdiction to review for abuse of discretion the BIA's conclusion that an offense constitutes a particularly serious crime."). Our review of the agency's decision on this point is "limited to ensuring that the agency relied on the appropriate factors and proper evidence to reach [its] conclusion." Id. at 1077 (citation and internal quotation marks omitted). The relevant factors are set forth in Matter of Frentescu, 18 I. &N. Dec. 244 (BIA 1982), and include the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. See Avendano-Hernandez, 800 F.3d at 1077.
In this case, the IJ and BIA properly considered the relevant factors in concluding that Garcia-Zuniga's conviction for felony sexual battery constituted a particularly serious crime. The agency examined the nature of the misconduct at issue, the characteristics of Garcia-Zuniga's victims, Garcia-Zuniga's past similar conduct, and the fact that Garcia-Zuniga had to register as a sex offender as a result of his conviction. The BIA further considered that Garcia-Zuniga's conviction was later reduced to a misdemeanor. Although Garcia-Zuniga argues that the BIA should have focused on other aspects of his offense that he claims make it less serious, "we 'cannot reweigh evidence to determine if the crime was indeed particularly serious.'" Bare v. Barr, 975 F.3d 952, 966 (9th Cir. 2020) (quoting Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir. 2013)).
Second, we find no error in the BIA's alternative conclusion that, even if the particularly serious crime bar did not apply, Garcia-Zuniga had not shown he was entitled to withholding of removal. To establish eligibility for withholding of removal, Garcia-Zuniga must show "that it is more likely than not" that he will be persecuted if returned to Mexico "because of" his membership in a particular social group or other protected ground. Barajas-Romero v. Lynch, 846 F.3d 351, 357, 360 (9th Cir. 2017); see 8 U.S.C. § 1231(b)(3)(A). The BIA properly concluded, consistent with our precedents, that Garcia-Zuniga's proposed social group of "Mexican males returning to Mexico after living within the United States and perceived to have money," is not cognizable. See Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (holding that proposed group of "individuals returning to Mexico [from] the United States [who] are believed to be wealthy" is not cognizable).
Garcia-Zuniga now claims membership in a proposed social group based on his family. But as the BIA recognized, this proposed group was not advanced before the IJ. We therefore lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) ("[T]he exhaustion of administrative remedies is a prerequisite to our jurisdiction.").
2. We review the denial of CAT relief for substantial evidence. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). To obtain CAT relief, an applicant bears the burden of establishing that he "will more likely than not be tortured with the consent or acquiescence of a public official if removed to h[is] native country." Id. Garcia-Zuniga has not experienced past torture in Mexico, and his request for relief referenced general reports of corruption and violence in the country. The record does not compel the conclusion that, if Garcia-Zuniga returns to Mexico, he will likely be tortured by or with the acquiescence of government officials. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) ("[G]eneral ineffectiveness on the government's part to investigate and prevent crime will not suffice to show acquiescence.").
PETITION DENIED.
[*] 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).