NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLEN CERVANTES CASTANEDA; No. 17-70303
MISAEL OSORNIO CERVANTES,
Agency Nos. A206-912-478
Petitioners, A206-912-479
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2022**
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,*** District
Judge.
Marlen Cervantes Castaneda, a citizen of Mexico, seeks review of a Board of
*
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).
***
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
Immigration Appeals (BIA) decision dismissing her appeal of an Immigration Judge
(IJ) order denying her requests for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT).1 We review for substantial evidence and
may grant relief only if the record compels a contrary conclusion. Yali Wang v.
Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We have jurisdiction under 8 U.S.C.
§ 1252 and we deny the petition.
1. Substantial evidence supports the denial of asylum and withholding of
removal. “To be eligible for asylum, a petitioner has the burden to demonstrate a
likelihood of ‘persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.’”
Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C.
§ 1101(a)(42)(A)). “To be eligible for withholding of removal, the petitioner must
discharge this burden by a clear probability.” Id. (internal quotation marks omitted).
The BIA reasonably determined that Cervantes had not demonstrated a
likelihood of persecution on account of a protected ground. Cervantes’s then-
husband’s refusal to join the Knights Templar gang, without more, does not form
the basis for a protected political opinion or a particular social group. See Ramos-
Lopez v. Holder, 563 F.3d 855, 861–62 (9th Cir. 2009), abrogated on other grounds
1
Cervantes’s son, Misael Osornio Cervantes, is a derivative applicant on her request
for asylum.
2
by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); Santos-
Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021). To the extent Cervantes
claims membership in the proposed group of Mexican citizens returning from the
United States, that social group also fails. See Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151–52 (9th Cir. 2010) (“Petitioners’ proposed social group, ‘returning
Mexicans from the United States,’ is . . . too broad to qualify as a cognizable social
group.”).2
Even if Cervantes’s proposed groups were cognizable, substantial evidence
supports the BIA’s determination that she would not be harmed because of her
membership in those groups. Cervantes testified that the gangs treated many people
in her town in the same manner, and that her family continues to live there unharmed.
“An alien’s desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground.” Zetino v.
Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).
2. Substantial evidence supports the denial of CAT relief. An applicant
for CAT protection must demonstrate that “she will more likely than not be tortured
with the consent or acquiescence of a public official if removed to her native
country.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).
2
To the extent Cervantes claims her family is a particular social group, she did not
raise that theory before the BIA. The claim is thus unexhausted. See 8 U.S.C.
§ 1252(d)(1).
3
Cervantes does not claim to have suffered past torture. Nor has she put
forward evidence showing that the Mexican government would consent or
acquiescence to her torture. Although Cervantes claims that one of the criminal
organizations in her town is a state actor, her testimony did not distinguish between
criminal groups and focused primarily on a different group, the Knights Templar.
Regardless, general violence and unrest caused by criminal groups does not suffice
for CAT protection. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir.
2016) (“The inability to bring the criminals to justice is not evidence of
acquiescence . . . .”).
PETITION DENIED.
4