Claudio Lopez Yanez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDIO LOPEZ YANEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-414
Agency No.
A206-408-252
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2023**
Seattle, Washington
Before: McKEOWN and GOULD, Circuit Judges, and BAKER, International Trade
Judge.***
Claudio Lopez Yanez, a Mexican citizen, petitions for review of the Board of
Immigration Appeals’ affirmance of an Immigration Judge’s (IJ’s) order denying
* 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 M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
NOV 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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him statutory withholding of removal and protection under the Convention Against
Torture. Having appellate jurisdiction under 8 U.S.C. § 1252, we deny the petition.
The Board “adopt[ed] and affirm[ed] the [IJ’s] . . . determination that the
respondent did not establish eligibility for either withholding of removal under the
[Immigration and Nationality] Act or for protection under the CAT,” citing Matter
of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). “When the BIA adopts and affirms
an IJ’s decision and cites its Burbano decision, we will review the IJ’s decision as if
it were that of the BIA.” Tista v. Holder, 722 F.3d 1122, 1125 (9th Cir. 2013)
(cleaned up). We review legal conclusions de novo. Plancarte Sauceda v. Garland,
23 F.4th 824, 831 (9th Cir. 2022). We review factual findings for substantial
evidence, which requires the petitioner to “show that the evidence not only supports,
but compels[,] the conclusion that these findings and decisions are erroneous.” Id.
(quoting Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020)).
1. To be eligible for statutory withholding of removal, “an applicant must
demonstrate that [his] life will be threatened in [the country of removal] because of
[his] race, religion, nationality, membership in a particular social group, or political
opinion.” Id. at 832 (cleaned up) (quoting 8 U.S.C. § 1231(b)(3)(A)). The applicant
may establish a presumption of future persecution by showing he was subject to past
persecution, or he may independently show a clear probability of future persecution.
Gutierrez-Alm v. Garland, 62 F.4th 1186, 1197 (9th Cir. 2023). Lopez Yanez seeks

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statutory withholding of removal based on membership in either of two proposed
particular social groups: (1) “Mexican males with long term medical conditions” and
(2) “Mexican males returning to Mexico after [a] prolonged period in the United
States.” In addition, he now raises a new proposed particular social group in his
opening brief: “those with medical conditions returning to La Noria, Jalisco[,] after
sixteen years, unable to hide or [change] their past experiences.” Because Lopez
Yanez failed to raise this argument before the IJ, we decline to consider it. See
Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1113–14 (2023) (holding that
§ 1252(d)(1) is a non-jurisdictional claim-processing rule). Accordingly, we
consider only the two particular social groups proposed to the IJ.
As to the first proposed group, 1 Lopez Yanez has failed to show past
persecution. He argues that the administrative record shows that he “was persecuted
and harmed” because he has epilepsy. The administrative record shows the opposite.
The IJ cited Lopez Yanez’s declaration stating that he left Mexico as a teenager to
seek a better life in the United States and to find a job that would help pay for
epilepsy medication. The declaration further stated that he had never been harmed
or threatened in Mexico and was not fleeing the country. Lopez Yanez also cites no
1 The IJ appears to have presumed that the first proposed social group is a recognized
one and based his ruling on the lack of either past persecution or a clear probability
of future persecution. Because our decision rests on the lack of evidence of past or
future persecution, we assume, without deciding, that the IJ’s implicit finding as to
the first proposed social group was correct.

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evidence (as opposed to speculative argument) to support his contention that he will
face persecution in the future. On cross-examination, he stated that if he returned to
Mexico, he would live with his father in a small town in the state of Jalisco and fears
that he would have difficulty finding and paying for his epilepsy medication and that
he would become a victim of generalized crime.2 The IJ found that there was no
evidence in the record that Lopez Yanez would face future persecution or harm
because of his medical condition and cited the country condition reports in the record
showing that the Mexican government is aware of, and making efforts to alleviate,
hardships that come with epilepsy. The record simply does not compel a finding
contrary to the IJ’s.
As to the second proposed social group, the IJ correctly found it foreclosed by
Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010). “[T]he key to establishing
a particular social group is ensuring that the group is narrowly defined.” Id. at 1151.
“Petitioners’ proposed social group, ‘returning Mexicans from the United States,’
. . . is too broad to qualify as a cognizable social group” because it includes people
with “a plethora of different lifestyles, varying interests, diverse cultures, and
contrary political leanings.” Id. at 1151–52 (quoting Ochoa v. Gonzales, 406 F.3d
1166, 1171 (9th Cir. 2005), abrogated on other grounds by Henriquez-Rivas v.
2 Lopez Yanez also argues that his case should be remanded for fact finding related
to the COVID-19 virus. But he does not explain how the COVID-19 pandemic bears
on his fear of persecution.

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Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc)). While Lopez Yanez frames his
proposed group slightly more narrowly—“Mexican males returning to Mexico after
[a] prolonged period in the United States”—that is a distinction without a
difference. Likewise, his effort to distinguish Delgado-Ortiz on the basis that his
hometown in Jalisco is a small town of about 300 people is unavailing. Whether a
proposed particular social group is cognizable depends on the nature of the group,
not the circumstances of a petitioner’s return. See Reyes v. Lynch, 842 F.3d 1125,
1135 (9th Cir. 2016) (discussing the requirements of a particular social group).
2. Lopez Yanez argues that the IJ “acknowledged” that “he will suffer certain
death and torture upon returning to Mexico.” The IJ in fact found no such thing, and
Lopez Yanez fails to support his argument by citation to any record evidence aside
from a single broadly sweeping reference to human rights abuses in Mexico. A claim
for relief under the Convention Against Torture, however, requires that “[t]he
torturer, whether a public official or a private party acting with the government’s
consent or acquiescence, must have the specific intent to inflict severe harm.” Cole
v. Holder, 659 F.3d 762, 771 (9th Cir. 2011); see also 8 C.F.R. § 1208.18(a)(5) (“In
order to constitute torture, an act must be specifically intended to inflict severe
physical or mental pain or suffering.”). Lopez Yanez points to no evidence of
specific intent to inflict harm. The record does not compel a contrary conclusion.
PETITION DENIED.

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