Opinion
20-71330
11-16-2022
GERSAIN DELA ROSA-ZEPEDA, AKA Froylan Zepeda Perez, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 8, 2022 Pasadena, California
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. A098-572-978
Before: MURGUIA, Chief Judge, and PARKER and LEE, Circuit Judges.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Petitioner Gersain De La Rosa-Zepeda challenges the Board of Immigration Appeals' ("BIA") decision affirming the denial of his applications for withholding of removal and protection under the Convention Against Torture ("CAT").
In 2016, when United States Customs and Immigration Enforcement ("ICE") took Rosa-Zepeda into custody, Rosa-Zepeda expressed fear of returning to Mexico, and he applied for withholding of deportation and protection under CAT. The immigration judge ("IJ") denied Rosa-Zepeda's requested relief, finding that there was no nexus between Rosa-Zepeda's fear of a gang's extortion and a cognizable social group for his withholding claim and rejecting Rosa-Zepeda's CAT claim. The IJ also found that Rosa-Zepeda was not credible. The BIA upheld the IJ's decision "even assuming the applicant is credible," because Rosa-Zepeda had not shown that he was persecuted on account of a protected ground or that he would face persecution upon his return to Mexico. The BIA also upheld the IJ's determination that Rosa-Zepeda had not established eligibility for CAT protection. We affirm.
1. On appeal, Rosa-Zepeda argues that the IJ's negative credibility finding was in error; the BIA, however, affirmed the IJ's decision assuming that Rosa-Zepeda was credible. Because this court's "review is limited to the actual grounds relied upon by the BIA," the IJ's negative credibility determination is not before this court. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (quotation omitted). Instead, to prevail on appeal, Rosa-Zepeda must show that the BIA erred on the merits of his withholding of removal and CAT claims.
2. Substantial evidence supports the BIA's determination that Rosa-Zepeda was not persecuted on account of a particular social group. Rosa-Zepeda argues that he is entitled to withholding of removal because he was persecuted on account of his particular social group consisting of people who are "persecuted by virtue of [their] ties to family and (both as business owners and crime witnesses) and subject to gang oppression." As a preliminary matter, Rosa-Zepeda did not propose to the IJ a particular social group to which he belongs. Instead, the IJ articulated Rosa-Zepeda's proposed particular social group as individuals who are afraid of crime and based on political opinion. On appeal to the BIA, Rosa-Zepeda attempted to reformulate his particular social group, but the BIA determined it would not consider social groups raised for the first time on appeal. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (concluding that the BIA "did not err when it declined to consider [the noncitizen's] proposed particular social groups that were raised for the first time on appeal"). Because Rosa-Zepeda did not properly raise these social groups before the IJ and the BIA, this court will not consider them on appeal. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (explaining that this court lacks subject-matter jurisdiction over unexhausted claims); see also Alanniz v. Barr, 924 F.3d 1061, 1069 (9th Cir. 2019) ("[N]either the BIA nor the Ninth Circuit is authorized to undertake the initial factfinding necessary to determine the viability of [a proposed particular social] group.").
The record shows that the gang extorted Rosa-Zepeda because-in his own words-"they knew that I was coming from . . . the north and that I had a store. And they thought that, well, that I have money.... [A]ll they thought was that I was coming from [the north] . . . and that I have a lot of money." At the hearing, Rosa-Zepeda further explained that the reason the gang members beat him up and threatened to rape him was because he was late in paying their extortion fee. The record therefore does not support that Rosa-Zepeda was persecuted because of a protected status, because individuals who are afraid of crime is not a viable particular social group. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (holding that a petitioner'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").
Furthermore, at his hearing before the IJ, Rosa-Zepeda stated that in 2016 "some uncles" were threatened while running to be municipal presidents. However, Rosa-Zepeda stated that he did not know who was responsible for the threats against his uncles and that this incident had "nothing" to do with him. Nor has Rosa-Zepeda shown any persecution on account of his uncles' 2016 political activity because the gang only targeted Rosa-Zepeda in 2012 and 2013. Therefore, Rosa-Zepeda is not entitled to withholding of removal on account of his political opinion.
3. Substantial evidence supports the BIA's determination that Rosa-Zepeda would not be tortured if he returned to Mexico. To qualify for deferral of removal under CAT, a petitioner must prove that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2). Rosa-Zepeda argues that criminal violence is so widespread in Mexico that he will necessarily be tortured if he returns to Mexico, but Rosa-Zepeda does not argue that he-as opposed to any other person-would be tortured, nor does he point to evidence in the record that the gang would torture him on his return. Rosa-Zepeda's "generalized evidence of violence and crime in Mexico is not particular to [his claim] and is insufficient to meet [CAT's] standard." Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Accordingly, Rosa-Zepeda has not shown that the BIA erred.
AFFIRMED
The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.