NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS GUTIERREZ FERNANDEZ, AKA No. 17-71182
Jesus Gutierrez,
Agency No. A095-728-625
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2022**
Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.
Jesus Gutierrez Fernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his 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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th
Cir. 2020). 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. Id. at 1241-42. We review
de novo claims of due process violations in immigration proceedings. Simeonov v.
Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the petition for review.
Substantial evidence supports the agency’s determination that Gutierrez
Fernandez failed to establish that the harm he experienced or fears was or would be
on account of his family membership or imputed political opinion. See Zetino v.
Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’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”); see also Ayala v. Holder, 640 F.3d 1095,
1097 (9th Cir. 2011) (even if membership in a particular social group is
established, an applicant must still show that “persecution was or will be on
account of his membership in such group”).
The agency did not err in concluding that Gutierrez Fernandez’s returnee-
based social group was not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131
(9th Cir. 2016) (to demonstrate membership in a particular social group, an
applicant must “establish that the group is (1) composed of members who share a
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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))); see also Delgado-Ortiz v. Holder, 600 F.3d 1148,
1151-52 (9th Cir. 2010) (proposed social group “returning Mexicans from the
United States” lacked particularity).
Thus, Gutierrez Fernandez’s asylum and withholding of removal claims fail.
Substantial evidence also supports the agency’s denial of CAT relief because
Gutierrez Fernandez failed to show it is more likely than not he will be tortured by
or with the consent or acquiescence of the government if returned to Mexico. See
Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too
speculative).
Gutierrez Fernandez’s contentions that the agency violated his right to due
process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error and
prejudice are required to prevail on a due process claim); see also Fernandez v.
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the
presumption that the BIA reviewed the record).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
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