FILED
NOT FOR PUBLICATION
AUG 28 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARNOLDO RAFEAL HERNANDEZ- No. 15-70711
RODRIGUEZ, AKA Arnoldo Hernandez-
Rodriguez, Agency No. A095-807-155
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.
Arnoldo Rafeal Hernandez-Rodriguez (“Hernandez-Rodriguez”), a native
and citizen of Guatemala, petitions for review of a Board of Immigration Appeals’
(“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision
*
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).
denying his application for withholding of removal under the Immigration and
Nationality Act (“INA”) and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition.
Whether a group constitutes a “particular social group” is a question of law
that we review de novo, Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010), but
we defer to the BIA’s interpretation of 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. See Silva-Pereira v. Lynch, 827
F.3d 1176, 1184 (9th Cir. 2016).
The BIA did not err in concluding there was no due process violation.
Hernandez-Rodriguez has not demonstrated that the proceedings before the IJ were
fundamentally unfair nor has he established that he suffered prejudiced. Colmenar
v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (must show fundamental unfairness
affecting the outcome of the proceeding).
The BIA did not err in finding that Hernandez-Rodriguez has not established
membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,
1131 (9th Cir. 2016) (explaining cognizability standard) (citing Matter of M-E-G-
V-, 26 I & N Dec. 227, 237 (BIA 2014)). Hernandez-Rodriguez has not
established that Guatemalans who resist gang recruitment would be perceived by
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society or criminal gangs as a particular social group. See Santos-Barrios v.
Holder, 582 F.3d 849, 854-55 (9th Cir. 2009) (men in Guatemala resisting gang
violence is not a particular social group), abrogated in part by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013). Hernandez-Rodriguez also has not
established that Guatemalans who have resided for many years in the United States
would be perceived by society or criminal gangs as a particular social group. See
Reyes, 842 F.3d at 1131 (explaining cognizability standard) (citing Matter of
M-E-G-V-, 26 I&N Dec. 227, 237 (BIA 2014)). Thus, Hernandez-Rodriguez’s
withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief. The record
does not compel the conclusion that Hernandez-Rodriguez is “more likely than
not” to be tortured by or with the consent or acquiescence of the government if he
returns to Guatemala. See 8 C.F.R. § 1208.16(c)(2); see also Aden v. Holder, 589
F.3d 1040, 1047 (9th Cir. 2009). Thus, Hernandez-Rodriguez’s CAT claim also
fails.
PETITION FOR REVIEW DENIED.
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Arnoldo Hernandez-Rodriguez v. William Barr
Combined Opinion