Heribert Valenzuela-Valenzuela v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
DEC 14 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERIBERTO VALENZUELA- No. 15-70800
VALENZUELA,
Agency No. A095-725-283
Petitioner,
MEMORANDUM*
v.

JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted November 14, 2017**
San Francisco, California

Before: RAWLINSON and BYBEE, Circuit Judges, and SMITH,*** Chief District
Judge.

*
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 William E. Smith, Chief United States District Judge
for the District of Rhode Island, sitting by designation.
Heriberto Valenzuela-Valenzuela (Valenzuela-Valenzuela) is a native and

citizen of Mexico. He petitions for review of the Board of Immigration Appeals’

(BIA) final order denying his motion to reopen to apply for withholding of removal

pursuant to 8 U.S.C. § 1231(b)(3) and relief under the United Nations Convention

Against Torture (CAT). Jurisdiction exists under 8 U.S.C. § 1252. The Court

reviews the BIA’s denial of a motion to reopen for abuse of discretion. Ramirez-

Munoz v. Lynch, 816 F.3d 1226, 1228 (9th Cir. 2016). The petition is denied.

First, Valenzuela-Valenzuela asserts membership in the proposed particular

social group “Americanized Mexicans” or “pochos” to argue eligibility for

withholding of removal. This Court, however, has unambiguously rejected this

proposed social group as not cognizable under the Immigration and Nationality

Act. See Ramirez-Munoz, 816 F.3d at 1228–29; Delgado-Ortiz v. Holder, 600

F.3d 1148, 1151–52 (9th Cir. 2010) (per curiam).

Moreover, Valenzuela-Valenzuela provided “insufficient evidence to

support [his] claim that [his] alleged American appearance will make [him a]

target[] for violent crimes upon return to Mexico any more than the populace at

large.” Ramirez-Munoz, 816 F.3d at 1229. The evidence Valenzuela-Valenzuela

set forth to demonstrate changed circumstances detailed crime against Americans,

persons with American relatives, migrants, and affluent and middle-class Mexican

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residents. This evidence does not, however, demonstrate that crime against these

groups necessarily translates to an increased risk to Valenzuela-Valenzuela based

on his alleged Americanized Mexican status, and Valenzuela-Valenzuela’s

conclusory assertion in his opening brief that “those perceived as Americans

clearly run the same risk” cannot carry the day. The BIA, therefore, did not abuse

its discretion in denying Valenzuela-Valenzuela’s motion to reopen with respect to

his withholding-of-removal claim.

Valenzuela-Valenzuela’s argument with respect to CAT relief is similarly

deficient. To prevail on this claim, Petitioner must demonstrate it is more likely

than not he would be tortured upon removal to Mexico. Ramirez-Munoz, 816 F.3d

at 1230. Here, Valenzuela-Valenzuela cross-references the same evidence

advanced in the context of his argument for withholding of removal. Yet, this

“generalized evidence of violence and crime in Mexico is not particular to

Petitioner[] and is insufficient to meet this standard.” Delgado-Ortiz, 600 F.3d at

1152; see also Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016) (“[H]e

otherwise relies on generalized evidence, which is insufficient for protection under

CAT.”). Thus, the BIA did not abuse its discretion in denying Valenzuela-

Valenzuela’s motion to reopen based on CAT protection.

3
Finally, this Court lacks jurisdiction to review the BIA’s denial of

administrative closure. Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1118–20

(9th Cir. 2009).

Accordingly, because Valenzuela-Valenzuela has not shown that the BIA

abused its discretion, the petition for review is DENIED.