FILED
NOT FOR PUBLICATION
MAY 10 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER HERNANDEZ-CORONA, No. 21-603
Petitioner, Agency No. A205-699-970
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 8, 2023**
Seattle, Washington
Before: W. FLETCHER, CLIFTON, and IKUTA, Circuit Judges.
Javier Hernandez-Corona, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (“BIA”) decision affirming the denial of
his applications for asylum, withholding of removal, and protection under the
*
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).
Convention Against Torture (“CAT”). The BIA dismissed Hernandez-Corona’s
appeal of the Immigration Judge’s (“IJ”) denial of his applications for asylum,
withholding of removal, and CAT relief. We have jurisdiction under 8 U.S.C.
§ 1252. We deny the petition.
We review the factual findings that a petitioner has not established eligibility
for asylum, withholding of removal, or CAT relief for substantial evidence.
Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). “To prevail
under the substantial evidence standard, the petitioner ‘must show that the evidence
not only supports, but compels the conclusion that these findings and decisions are
erroneous.’” Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020) (quoting
Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). Our review is limited
to the BIA’s decision except where the BIA expressly adopted the IJ’s opinion. Id.
Substantial evidence supports the agency’s denial of asylum and
withholding of removal. For both asylum and withholding of removal, petitioners
must establish that their proposed social 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.” Conde Quevedo v. Barr, 947 F.3d
1238, 1242 (9th Cir. 2020) (internal quotation and citation omitted). The BIA
found that Hernandez-Corona’s three proposed social groups—“Mexican deportee
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who has long-standing ties to the United States,” “returning Mexican who has lived
in the United States more than twenty years,” and “male Mexican returnee with
long-term United States residence”—were not socially distinct in Mexican society.
The country conditions reports in the record establish that deported individuals
may be targets for gang activity, theft, and violence. But Hernandez-Corona did
not provide sufficient evidence that Mexican society views this group as distinct.
See Nguyen v. Barr, 983 F.3d 1099, 1104 (9th Cir. 2020) (“Nguyen bears the
burden of proving the alleged ‘particular social group’ is particularized, socially
distinct, and based on an immutable characteristic. He failed to satisfy that
burden.”).
Substantial evidence also supports the denial of CAT protection.
Hernandez-Corona argues that his expert report establishes a greater than 50%
likelihood of future torture because it shows that the police willfully ignore crime.
Record evidence does demonstrate general police ineffectiveness in addressing
gang activity and violence towards deported individuals. But Hernandez-Corona
has not shown that there is a particularized risk to him. See, e.g., Tzompantzi-
Salazar v. Garland, 32 F.4th 696, 706–07 (9th Cir. 2022) (“[T]he country
conditions evidence acknowledged crime and police corruption in Mexico
generally, as well as higher rates in Tijuana. But the evidence fails to show that
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Petitioner faces a particularized, ongoing risk of future torture.”); Barajas-Romero
v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (“Police ineffectiveness is not enough
to establish an entitlement to relief . . . .”). The record thus does not compel a
finding that Hernandez-Corona would more likely than not be tortured with the
consent or acquiescence of a public official. See 8 C.F.R. § 208.16(c)(2).
PETITION DENIED.
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