Benjamin Gomez Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN GOMEZ HERNANDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-274
Agency No.
A208-184-420
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2023**
Pasadena, California
Before: BYBEE and CHRISTEN, Circuit Judges, and VITALIANO, District
Judge.***
Benjamin Gomez Hernandez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (BIA) decision denying his
application for asylum, withholding of removal, and protection under 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 Eric N. Vitaliano, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
JUN 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Convention Against Torture (CAT). We review de novo questions of
law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). “We review for
substantial evidence factual findings underlying the BIA’s determination that a
petitioner is not eligible for asylum, withholding of removal, or CAT relief.”
Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). “Where, as
here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994)
and also provides its own review of the evidence and law, we review both the
IJ’s and the BIA’s decisions.” Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir.
2020) (internal quotation marks, alterations, and citation omitted). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition.
Gomez Hernandez was born in Guatemala in 1980 and grew up there. As
a child, he faced discrimination because he is of Mayan descent. In 1999, he
entered the United States, and he remained in the country until 2014. In 2014,
he returned to Guatemala, where he faced threats and was beaten by gang
members. While back in Guatemala, Gomez Hernandez briefly operated a
small business selling clothing at a market. In 2015, he returned to the United
States, entering without inspection.
The BIA did not err by affirming the IJ’s denial of asylum and
withholding of removal. Substantial evidence supports the agency’s finding
that Gomez Hernandez failed show that his alleged particular social group of
“young indigenous business owners,” is cognizable. Gomez Hernandez made
no showing that his status as a business owner is an immutable characteristic,

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particularly given that he operated his clothing business for only a brief period.
Cf. Macedo Templos v. Wilkinson, 987 F.3d 877, 882–83 (9th Cir. 2021)
(“[B]eing a wealthy business owner is not an immutable characteristic . . . .”).
Gomez Hernandez failed to make any argument or cite any authority
regarding CAT protection in his appellate brief before the BIA. The BIA
deemed the issue abandoned. On appeal, the Government argues that the claim
is unexhausted. In his petition for review, Gomez Hernandez fails to raise any
meaningful challenge to the BIA’s determination that he abandoned his CAT
claim. Pursuant to 8 U.S.C. § 1252(d)(1), we therefore deny the claim as
unexhausted.
The motion for a stay of removal (Dkt. No. 3) is denied.
PETITION DENIED.

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