FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 06 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRUNO DELGADO-ORTIZ; No. 09-72993
VERONICA VASQUEZ-INIGUEZ,
Agency Nos. A096-353-145
Petitioners, A096-353-146
v.
OPINION
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2010*
San Francisco, California
Filed April 6, 2010
Before: CANBY, GOULD, and TALLMAN, Circuit Judges.
________________________________________________________
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Per Curiam:
Bruno Delgado-Ortiz (“Delgado-Ortiz”) and Veronica Vasquez-Iniguez
(“Vasquez-Iniguez”) (collectively “Petitioners”) are natives and citizens of
Mexico. They petition for review of the Board of Immigration Appeals’ (“BIA”)
final order denying their motion to reopen to apply for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252(b) to review the BIA’s
denial of a motion to reopen. See Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.
2004). Because we find that the BIA did not abuse its discretion in determining
that Petitioners did not present a prima facie case and that Petitioners’ proposed
social group, “returning Mexicans from the United States,” was too broad to
qualify for the requested relief, we deny the petition for review.
I.
Delgado-Ortiz and Vasquez-Iniguez, husband and wife, entered the United
States in February 1993 and January 1992, respectively, without admission or
parole after inspection by an immigration officer. The government issued Notices
to Appear on June 27, 2003, and Petitioners conceded removability at the initial
removal hearing. Petitioners withdrew their previously-filed applications for
asylum, withholding of removal, and CAT protection, but applied for cancellation
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of removal under Section 240A(b)(1) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1229b(b)(1), and voluntary departure under Section 240B(b)
of the INA, 8 U.S.C. § 1229c(b). An immigration judge denied Petitioners’
applications for cancellation of removal and granted Petitioners voluntary
departure in an order dated April 19, 2006. On December 6, 2007, the BIA
dismissed Petitioners’ appeal, agreeing with the immigration judge that they did
not qualify for cancellation of removal because they failed to show that their
removal would result in exceptional and extremely unusual hardship to their
qualifying relatives, namely their United States citizen daughter and Vasquez-
Iniguez’s lawful permanent resident mother. The BIA granted Petitioners
permission to voluntarily depart from the United States.
Petitioners did not depart, and on February 4, 2008, Petitioners filed a timely
motion to reopen seeking to introduce new hardship evidence and to reapply for
protection under the CAT. The BIA denied the motion to reopen on April 24,
2008.
Petitioners filed a second motion to reopen on February 4, 2009—based on
allegedly new country conditions—seeking to reapply for asylum, withholding of
removal, and protection under the CAT. Petitioners asserted they belong to a
particular social group: Mexicans returning home from the United States who are
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targeted as victims of violent crime as a result. Certified Administrative Record
(“AR”) 15-16. Petitioners claimed that the authorities in Mexico do nothing to
protect this particular class of Mexicans. AR 16. In support of their motion,
Petitioners submitted declarations, news articles describing current violence in
Mexico primarily associated with drug trafficking and drug cartels, as well as a
new asylum application. AR 29-57. Because their second motion to reopen was
based on allegedly new country conditions, Petitioners argued that the time
limitations set on motions to reopen did not apply. AR 20.
The BIA held that Petitioners’ second motion to reopen was untimely and
number-barred, and Petitioners failed to demonstrate changed country conditions.
AR 8-9. Further, the BIA held that, even if changed country conditions existed,
Petitioners failed to demonstrate prima facie eligibility for the requested relief.
AR 9. On those grounds, the BIA denied the motion.
II.
We review for an abuse of discretion the BIA’s denial of a motion to reopen.
Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). Motions to reopen are
disfavored due to the “strong public interest in bringing litigation to a close.” See
INS v. Abudu, 485 U.S. 94, 107 (1988). They are particularly disfavored in
immigration proceedings, where “every delay works to the advantage of the
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deportable alien who wishes merely to remain in the United States.” INS v.
Doherty, 502 U.S. 314, 323 (1992); see Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th
Cir. 1996). A motion to reopen will not be granted unless the respondent
establishes a prima facie case of eligibility for the underlying relief sought. See
Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003).
III.
As case law in this circuit makes clear, the Petitioners’ motion to reopen
failed to demonstrate prima facie eligibility for the relief requested. Petitioners
assert they qualify for asylum because they have a well-founded fear of persecution
on account of their membership in a particular social group, specifically “returning
Mexicans from the United States.” Petitioners’ evidence included a joint
declaration stating their fear of returning to Mexico and relating the experience of a
relative who returned to Mexico for a visit. The relative was “attacked by several
delinquents,” who “told him to give them everything he had.” AR 24. Further, the
declaration states that “some delinquents” broke into another relative’s house
because they saw that a resident of the United States “had arrived on vacation in
Mexico to visit.” AR 24-25. Finally, the declaration states that Petitioners know
people who “have gone to Mexico on vacation” and were “robbed” and had “their
belongings stolen and were beaten.” AR 25.
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In response to an order to show cause issued by this court, Petitioners argue
that the standard for establishing a prima facie case in a motion to reopen is much
lower than what is required to obtain the requested relief. See Petitioners’ Reply to
Show Cause (“Petitioners’ Reply”), filed October 6, 2009, p. 14. Petitioners argue
that they have demonstrated a prima facie case and are entitled to have a hearing on
their applications for relief. See Petitioners’ Reply, p. 12.1
Asylum is not available to victims of indiscriminate violence, unless they are
singled out on account of a protected ground. See Ochave v. INS, 254 F.3d 859,
865 (9th Cir. 2001). We have held that the key to establishing a particular social
group is ensuring that the group is narrowly defined. See Ochoa v. Gonzales, 406
F.3d 1166, 1170-71 (9th Cir. 2005). Further, when seeking to define such a group,
“[v]arious factors, such as immutability, cohesiveness, homogeneity, and visibility,
are helpful in various contexts,” but we should also follow the “traditional common
law approach, looking at hypothetical cases and commonalities in cases that go one
way or the other.” Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th Cir. 2009).
1
Respondent argues in the motion for summary disposition that the petition
for review should be denied because the motion to reopen was untimely and
number-barred, and Petitioners do not challenge this in their petition. Because we
conclude that Petitioners did not establish a prima facie case for relief, we do not
address the arguments of timeliness or numerical bar.
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Accordingly, we look to similar cases involving the type of broad social
group alleged by Petitioners. In Ochoa, we held that business owners in Colombia
who had rejected demands by narcotics traffickers to participate in illegal narcotics
activity did not qualify as a particular social group. Ochoa, 406 F.3d at 1171. In
Donchev, we held that friends of Roma individuals or of the Roma generally are
not a particular social group. Donchev, 553 F.3d at 1220. Finally, we have
determined that young men in El Salvador resisting gang violence are not a
particular social group. See Santos-Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th
Cir. 2008). We conclude that Petitioners’ proposed social group, “returning
Mexicans from the United States,” is analogous to these cases and is too broad to
qualify as a cognizable social group. Certainly, “[i]ndividuals falling within the
parameters of this sweeping demographic division naturally manifest a plethora of
different lifestyles, varying interests, diverse cultures, and contrary political
leanings.” Ochoa, 406 F.3d at 1171 (quoting Sanchez-Trujillo v. INS, 801 F.2d
1571, 1577 (9th Cir. 1986)). Notably, in their reply, Petitioners argue that
members of their proposed social group are “easily identified,” but they do not
address at all the issue of the breadth of the proposed group. Petitioners’ Reply,
pp. 18-19.
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As for their claim for withholding of removal, to qualify Petitioners must
prove it is “more likely than not” that they will be persecuted on account of a
statutorily-protected ground. See Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.
2001). As we have already held that the BIA did not err in holding that the
particular social group identified by the Petitioners is insufficient to merit asylum
protection, we also hold that Petitioners fail to present a prima facie case for
withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003) (holding that an applicant who fails to satisfy the lower standard of proof for
asylum necessarily fails to satisfy the more stringent standard for withholding of
removal). Accordingly, Petitioners’ motion to reopen did not establish prima facie
eligibility for asylum or withholding of removal.
Finally, with regard to their application for protection under the CAT,
Petitioners must establish that it is more likely than not that they would be tortured
if returned to Mexico. 8 C.F.R. § 208.16(c)(2); Soriano v. Holder, 569 F.3d 1162,
1167 (9th Cir. 2009). Petitioners’ generalized evidence of violence and crime in
Mexico is not particular to Petitioners and is insufficient to meet this standard.
Thus, Petitioners also failed to establish prima facie eligibility for protection under
the CAT. Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).
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In conclusion, Petitioners failed to demonstrate that reopening their case was
warranted. The BIA did not abuse its discretion by so holding. Respondent’s
motion for summary disposition is granted.
IV.
The motion to proceed in forma pauperis is granted. The Clerk shall amend
the docket to reflect this status. All other pending motions are denied as moot.
The temporary stay of removal shall continue in effect until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
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COUNSEL
Joubin Nasseri, Nasseri Law Group, Los Angeles, California, for the petitioners.
Eric H. Holder Jr. & Ari Nazarov, United States Department of Justice, Civil
Division, Washington, D.C., for the respondent.
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