Opinion
17-70964
10-19-2022
VERONICA ZARATE SOLORIO; LAURA MICHELLE DUENAS ZARATE, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
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 Nos. A096-222-580, A208-307-318
Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM
Veronica Zarate Solorio and her daughter, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals' ("BIA") order dismissing their appeal from an immigration judge's ("IJ") decision denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIA's interpretation of the governing statutes and regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review for substantial evidence the agency's factual findings. Id. at 1241. We review de novo claims of due process violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny in part and dismiss in part the petition for review.
The BIA did not err in concluding that petitioners did not establish membership in a cognizable particular 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))); Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020) ("The common immutable characteristic has been defined as one 'that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.'"); see also 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, petitioners' asylum and withholding of removal claims fail.
To the extent petitioners raise a new proposed particular social group based on family membership in their opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).
In their opening brief, petitioners do not raise, and therefore waive, any challenge to the BIA's determination that they waived challenge to the IJ's denial of CAT protection. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in an opening brief are waived). Thus, we deny the petition for review as to petitioners' CAT claim.
We reject petitioners' contention that the IJ violated due process or otherwise erred in its analysis. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error required to prevail on a due process claim).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).