Opinion
20-70766
10-21-2022
JOSE RAMIREZ-ORTEGA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 19, 2022 Portland, Oregon
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A089-862-173
Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Jose Ramirez-Ortega, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order affirming, without opinion, an immigration judge's ("IJ") decision denying his applications for withholding of removal and protection under the Convention Against Torture ("CAT"). See 8 C.F.R. § 1003.1(e)(4). We have jurisdiction under 8 U.S.C. § 1252. "When the BIA summarily affirms the IJ's decision, we review the IJ's decision as the final agency action." Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir. 2006). We review the agency's "legal conclusions de novo and its factual findings for substantial evidence." Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). We dismiss in part and deny in part the petition for review.
1. The BIA did not err in affirming the IJ's denial of withholding of removal. Ramirez-Ortega's claim for withholding of removal was based solely on his membership in the particular social group "young Mexican men removed from the United States perceived by society to be returning to Mexico with wealth earned from living in the United States." We have previously rejected the proposed groups of "those returning home who appear to be American," or "imputed wealthy Americans," Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016), and the group "returning Mexicans from the United States," Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (per curiam), as too broad to constitute a particular social group. See also Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir. 2019) (alterations in original) (reaffirming that the proposed social group of "individuals 'returning to Mexico [from] the United States [who] are believed to be wealthy,' . . . like the groups in Delgado-Ortiz and Ramirez, is too broad to qualify as a cognizable 'particular social group'"). The IJ properly concluded that Ramirez-Ortega's proposed social group was not cognizable. Thus, the statutory withholding of removal claim fails.
2. We lack jurisdiction to review Ramirez-Ortega's claims of newly proposed social groups or protected grounds raised for the first time in his opening brief. See 8 U.S.C. § 1252(d)(1); see also Barron v. Ashcroft, 358 F.3d 674, 67778 (9th Cir. 2004) (explaining that exhaustion is mandatory and jurisdictional); Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004) (concluding "that the exhaustion requirement applies to 'streamlined' cases").
3. Substantial evidence also supports the agency's determination that Ramirez-Ortega was not entitled to CAT protection. Ramirez-Ortega asserts that the agency failed to consider all the record evidence. The record refutes this claim. Additionally, we presume that the agency reviewed all the evidence in the record, and Ramirez-Ortega has not overcome that presumption. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006).
An applicant for CAT relief must show "that it is more likely than not that he . . . would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2). A claim of future fear of persecution or torture "is weakened, even undercut" when "similarly-situated family members continue to live in the country [of removal] without incident." Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 747-48 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) (finding significant that petitioner's mother "remained safely in his hometown"). Substantial evidence supports the conclusion that Ramirez-Ortega's similarly situated family member, a brother who was previously removed and then attacked in his hometown, was able to relocate safely to the interior of Mexico. The record does not compel the conclusion that it is more likely than not that Ramirez-Ortega would suffer harm rising to the level of torture if he returned to Mexico. See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir. 2019) (denying CAT relief because applicant failed to show "a greater risk to him than any other Mexican national deported from the United States").
We lack jurisdiction to review Ramirez-Ortega's unexhausted contentions as to his ability to relocate within Mexico and the agency's analysis of that issue. See Barron, 358 F.3d at 677-78.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.
The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation.