NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTINA PEREZ-LOPEZ, AKA Amelia Nos. 18-71417
Cristina Perez-Lopez, 19-71606
Petitioner, Agency No. A205-595-140
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Cristina Perez-Lopez, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her 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).
(petition No. 18-71417) and the BIA’s order denying her motion to reopen
(petition No. 19-71606). 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 for abuse of discretion the denial of a motion to
reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in
part and dismiss in part the petition for review in No. 18-71417, and we deny the
petition for review in No. 19-71606.
As to petition No. 18-71417, the agency did not err in concluding that Perez-
Lopez failed to 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))).
Thus, Perez-Lopez’s asylum and withholding of removal claims fail.
Substantial evidence supports the agency’s denial of CAT relief because
Perez-Lopez failed to show it is more likely than not she would be tortured by or
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with the consent or acquiescence of the government if returned to Guatemala. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
To the extent Perez-Lopez requests, in her opening brief, to take judicial
notice of country condition reports that were not submitted to the agency, the
request is denied. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc)
(court’s review is limited to the administrative record).
To the extent Perez-Lopez argues that the IJ improperly afforded her
testimony less evidentiary weight, we lack jurisdiction to consider the contention.
See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks
jurisdiction to review claims not presented to the agency).
Perez-Lopez’s request, raised in her opening brief, to remand for a
determination on her asylum eligibility in the first instance based on her claimed
membership in the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176
(W.D. Wash. 2018), is denied because the record indicates the agency made a
determination as to the merits of Perez-Lopez’s asylum application.
As to petition No. 19-71606, the BIA did not abuse its discretion in denying
Perez-Lopez’s motion to reopen, where she did not establish that membership in
the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018),
would affect the outcome of her proceedings. See Najmabadi v. Holder, 597 F.3d
983, 986 (9th Cir. 2010) (“The BIA can deny a motion to reopen on any one of at
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least three independent grounds—failure to establish a prima facie case for the
relief sought, failure to introduce previously unavailable, material evidence, and a
determination that even if these requirements were satisfied, the movant would not
be entitled to the discretionary grant of relief which he sought.” (internal quotation
marks and citation omitted)).
As stated in the court’s July 20, 2018 and July 10, 2019 orders, the
temporary stay of removal remains in place until issuance of the mandate.
PETITION NO. 18-71417 DENIED in part; DISMISSED in part.
PETITION NO. 19-71606 DENIED.
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