NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS MUNOZ-MORENO, AKA No. 16-72617
Juan Munoz Moreno Sousa, AKA Juan
Carlos Munoz, Agency No. A205-158-244
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 7, 2019**
Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.
Juan Carlos Munoz-Moreno, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except
to the extent that deference is owed to the BIA’s interpretation of the governing
statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
We review for substantial evidence the agency’s factual findings. Zehatye v.
Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in
part the petition.
Even if Munoz-Moreno’s asylum claim is not time-barred, see 8 U.S.C.
§ 1158(a)(2)(B), substantial evidence supports the BIA’s conclusion that it would
fail on its merits. Munoz-Moreno claims he fears he will be persecuted on account
of his membership in three social groups: (1) “the Munoz family”; (2) “person[s]
with tattoos who could be confused as being a gang member by the police”; and (3)
“people who grew up in the United States after leaving Mexico as a child.”
Although Munoz-Moreno raised the first social group, “the Munoz family,” before
the IJ, he did not appeal it to the BIA, so we have no 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). The BIA did not err in
finding that Munoz-Moreno failed to establish membership in a cognizable social
group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to
demonstrate membership in a particular group, “[t]he applicant must ‘establish that
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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))).
Additionally, substantial evidence supports the BIA’s conclusion that any
persecution Munoz-Moreno might suffer because his tattoos are mistaken for gang
tattoos would bear no nexus to any protected ground. See Zetino v. Holder, 622
F.3d 1007, 1016 (9th Cir. 2010). Our conclusion is not affected by the differing
nexus standards applicable to asylum and withholding of removal claims. Cf.
Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (discussing Zetino v.
Holder having drawn no distinction between the standards where there was no
nexus at all to a protected ground). Thus, Munoz-Moreno’s asylum and
withholding of removal claims fails.
Substantial evidence supports the agency’s denial of CAT relief because
Munoz-Moreno failed to show it is more likely than not he will be tortured by or
with the consent or acquiescence of the government if returned to Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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