NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RITO CRUZ, AKA Rito Rahin Cruz No. 18-72699
Sanchez,
Agency No. A074-425-351
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2021**
Pasadena, California
Before: O’SCANNLAIN, CALLAHAN, and OWENS, Circuit Judges.
Rito Cruz, a native and citizen of Mexico, petitions this Court for review of
the Board of Immigration Appeals’ denial of his claims for withholding of removal
and for relief under the Convention Against Torture (“CAT”). As the facts are
*
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).
known to the parties, we repeat them only as necessary to explain our decision.
I
The Board of Immigration Appeals (“BIA”) properly concluded that Cruz is
ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3). Cruz’s
proposed social group of “former drug cartel workers who became confidential
informants” is not legally cognizable because it lacks “social distinction.” See
Reyes v. Lynch, 842 F.3d 1125, 1129, 1135, 1137 (9th Cir. 2016). Cruz has failed
to identify record evidence “showing that [Mexican] society in general perceives”
such persons “to be a group.” Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020)
(quoting Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (B.I.A. 2014)) (emphasis
added). Whereas he argues that “cartels perceive informants to be a distinct
group,” we have been explicit in clarifying that “social distinction” is “not . . .
assessed from the perspective of the persecutors.” Diaz-Torres v. Barr, 963 F.3d
976, 980 (9th Cir. 2020) (citing Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th
Cir. 2020)). Cruz’s failure to show “social distinction” is dispositive in establishing
that his withholding claim must fail. See Reyes, 842 F.3d at 1131 (applying Matter
of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)).
II
The BIA also properly determined that Cruz is ineligible for relief under
CAT. Cruz failed to meet his burden of showing that, if removed to Mexico, “it is
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more likely than not that he . . . would be tortured,” and that such torture would be
“inflicted by[,] at the instigation of[,] or with the consent or acquiescence of a
[Mexican] public official acting in an official capacity.” Garcia-Milian v. Holder,
755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1)). Ample record evidence establishes that the Mexican government
investigates crimes, arrests cartel members, and takes other actions to combat
cartel and gang criminality, including with some success. In light of such evidence,
the Mexican government cannot be said to “acquiesce in” torture such as that
feared by Cruz, even if some of its initiatives “ha[ve] been generally ineffective in
preventing . . . criminal activities.” Id. at 1034. Accordingly, “substantial
evidence” supports the BIA’s determination that Cruz “has failed to establish the
state action necessary for CAT relief.” See id. at 1035.
III
Finally, the BIA properly rejected Cruz’s argument that his due-process right
to a “full and fair hearing” was violated when the Immigration Judge (“IJ”) on
remand did not consider new testimony or evidence outside the already-developed
record.
Cruz’s counsel failed to object to the IJ’s decision to proceed on remand
without hearing new testimony or admitting new evidence; indeed, his counsel
affirmatively agreed with the IJ’s assessment that “the factual record’s been fully
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developed.” As such, Cruz’s due-process challenge is waived. See Garcia v. INS,
222 F.3d 1208, 1209 (9th Cir. 2000) (per curiam) (“It is a longstanding principle
that . . . each party is deemed bound by the acts of his lawyer-agent . . . .” (internal
quotation marks and citations omitted)).
In any event, Cruz’s due-process challenge fails on the merits. He has not
met his burden of showing that the IJ’s “conduct” “prejudiced” him by “potentially
affect[ing] the outcome of the proceedings.” Colmenar v. INS, 210 F.3d 967, 972
(9th Cir. 2000) (citations and alteration omitted). Here, Cruz simply speculates that
if the IJ on remand had allowed him “to present additional testimony regarding
either his membership in a particular social group or his objective fear of returning
to Mexico,” then “any issues regarding these two elements of withholding may
have been resolved in [his] favor.” But he offers no concrete support for such
speculation.
PETITION FOR REVIEW DENIED.
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