Ricardo Diaz Villafuerte v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO DIAZ VILLAFUERTE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72092
Agency No. A205-465-826
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2022**
San Francisco, California
Before: NGUYEN and SANCHEZ, Circuit Judges, and BOUGH,*** 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 Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
FILED
DEC 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Ricardo Diaz Villafuerte, a native and citizen of Peru, petitions for review of
a decision by the Board of Immigration Appeals (“BIA”) affirming the
immigration judge’s (“IJ”) order denying cancellation of removal, withholding of
removal, and protection under the Convention Against Torture (“CAT”), and
granting voluntary departure.1 We have jurisdiction under 8 U.S.C. § 1252.
Reviewing the agency’s factual findings for substantial evidence and its legal
conclusions de novo, see Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir.
2022), we deny the petition for review.
1. We agree that Diaz Villafuerte’s proposed particular social group—
“Peruvian citizens returning to Peru with U.S. citizen children”—is not cognizable.
The Ninth Circuit has previously rejected similar proposed social groups based on
return to a home country. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52
(9th Cir. 2010) (finding proposed social group of “returning Mexicans from the
United States” too broad to qualify as cognizable); Ramirez-Munoz v. Lynch, 816
F.3d 1226, 1229 (9th Cir. 2016) (rejecting proposed social group of “those
returning home who appear to be American”). And substantial evidence supports
the agency’s conclusion that individuals in this proposed category are perceived as
a discrete and distinct group in Peru. See Reyes v. Lynch, 842 F.3d 1125, 1131–32,
1 On appeal, Diaz Villafuerte contests only the agency’s denial of withholding of
removal and relief under the Convention Against Torture.

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1135 (9th Cir. 2016).
There is furthermore no evidence of a nexus between Diaz Villafuerte’s
proposed particular social group and any harm. Diaz Villafuerte was never
personally threatened with physical harm. Nor does Diaz Villafuerte expect to face
particularized threats when he returns. Rather, Diaz Villafuerte points to fears that
arise from general country conditions in Peru or from potential harm to his children
based on their ability to speak English. Diaz Villafuerte adduces no evidence that
it is more likely than not that he will suffer future persecution due to his status as a
Peruvian citizen returning with his U.S. citizen children.
2. Substantial evidence also supports the agency’s determination that
Diaz Villafuerte abandoned his claim based on political opinion. Prior to
examining Diaz Villafuerte, petitioner’s counsel told the IJ that he “d[id]n’t know
if political opinion is appropriate” because Diaz Villafuerte “was never involved in
politics in Peru.” During the examination, when asked if he had any problems in
Peru, Diaz Villafuerte answered, “[p]olitically or by religion, I believe no.” Diaz
Villafuerte also testified that he had not previously been, nor was he presently, a
member of a political party in Peru. Finally, Diaz Villafuerte’s counsel did not
raise the issue at closing argument when arguing his withholding claim.
3. Finally, substantial evidence supports the agency’s determination that
Diaz Villafuerte is not entitled to CAT relief because he has not shown he is more

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likely than not to suffer torture in Peru. Diaz Villafuerte was not subject to torture
in the past. He adduces no record evidence supporting his claim that the
government, or any entity with the acquiescence of the government, would torture
him upon return to Peru. Generalized evidence of violence and crime in Peru does
not satisfy his burden. See Delgado-Ortiz, 600 F.3d at 1152 (holding that
“generalized evidence of violence and crime in Mexico is not particular to
[p]etitioners and is insufficient to meet [the CAT relief] standard”).
PETITION DENIED.

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