Gamaliel Cruz Jimenez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAMALIEL CRUZ JIMENEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-71454
Agency No. A205-316-441
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2022**
San Francisco, California
Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE,***
District Judge.
Gamaliel Cruz Jimenez, a citizen of Mexico, petitions for review of an order
of the Board of Immigration Appeals (“BIA”) dismissing his appeal from 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).
*** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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denial by an Immigration Judge (“IJ”) of his applications for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We deny the petition for review in part and
dismiss it in part.
Because the BIA adopted and affirmed the IJ’s decision under Matter of
Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), “we review the IJ’s order as if it
were the BIA’s.” See Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011) (citing
Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en banc)). “We
review for substantial evidence the [agency’s] factual findings.” Conde Quevedo
v. Barr, 947 F.3d 1238, 1241–42 (9th Cir. 2020) (citing Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)). 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. (citations omitted).
1. Substantial evidence supports the agency’s conclusion that Cruz Jimenez did
not show he suffered past persecution in Mexico. “Persecution is an extreme
concept and has been defined as the infliction of suffering or harm . . . in a way
regarded as offensive.” Kaur v. Wilkinson, 986 F.3d 1216, 1222 (9th Cir. 2021)
(quoting Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018)). At most, the
record shows that Cruz Jimenez suffered harassment and name-calling in Mexico

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because of his indigenous background. This discriminatory treatment, while
offensive, does not rise to the level of persecution. See Sharma v. Garland, 9 F.4th
1052, 1060–63 (9th Cir. 2021) (collecting cases).
2. Substantial evidence also supports the agency’s conclusion that Cruz
Jimenez did not establish a clear probability of future persecution. Though the
record indicates that indigenous individuals face discrimination in Mexico, this
evidence falls well short of compelling the conclusion that Cruz Jimenez is likely
to face persecution upon removal. See Sharma, 9 F.4th at 1060. Likewise, the
generalized crime and violence in Mexico that Cruz Jimenez cites do not indicate
that he, personally, is likely to suffer persecution on account of a protected ground.
See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir. 2019) (citations omitted).
3. The agency also did not err by rejecting Cruz Jimenez’s proposed particular
social group, “Mexicans of perceived wealth.” We have repeatedly rejected
proposed social groups materially indistinguishable from this group. See Barbosa
v. Barr, 926 F.3d 1053, 1059–60 (9th Cir. 2019) (first citing Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (per curiam); and then citing
Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016)).
4. Substantial evidence supports the agency’s denial of CAT relief. The
generalized evidence of crime and violence that Cruz Jimenez cites does not
compel the conclusion that he is more likely than not to be tortured upon returning

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to Mexico. See Flores-Vega, 932 F.3d at 887 (citing Delgado-Ortiz, 600 F.3d at
1152). Nor has Cruz Jimenez provided evidence showing he faces a particularized
risk of torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th Cir. 2008)
(first citing Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004); and then citing
Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006)).
5. Finally, Cruz Jimenez failed to present his due process claim to the BIA in
the first instance, even though the BIA could have addressed the procedural
deficiencies he alleges. We therefore lack jurisdiction to address the claim. See
Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam); Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN PART.

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