German Favela-Orozco v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERMAN FAVELA-OROZCO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1701
Agency No.
A089-927-219
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 22, 2023**
Portland, Oregon
Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.
Petitioner German Favela-Orozco is a native and citizen of Mexico. He
petitions for review of a Board of Immigration Appeals (“BIA”) order
dismissing his appeal from an Immigration Judge’s (“IJ”) decision denying his
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Exercising jurisdiction pursuant to 8
* 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).
FILED
AUG 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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U.S.C. § 1252, we DENY the petition for review.
We review the agency’s factual determinations under the highly
deferential substantial evidence standard. Ruiz-Colmenares v. Garland, 25
F.4th 742, 748 (9th Cir. 2022). “To prevail under the substantial evidence
standard, the petitioner ‘must show that the evidence not only supports, but
compels the conclusion that these findings and decisions are erroneous.’”
Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020) (quoting Cordon-Garcia v.
INS, 204 F.3d 985, 990 (9th Cir. 2000)) (emphasis added). We review
questions of law de novo. Ruiz-Colmenares, 25 F.4th at 748.
1. The BIA did not err in rejecting Favela-Orozco’s asylum claim.
“To be eligible for asylum, a petitioner has the burden to demonstrate a
likelihood of ‘persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political
opinion.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8
U.S.C. § 1101(a)(42)(A)).
Favela-Orozco claimed persecution on account of his membership in a
particular social group (“PSG”) consisting of “close family members of Favela,
or the Favela family.” To be legally cognizable, a PSG must be “(1) composed
of members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question.” Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also Reyes v. Lynch, 842
F.3d 1125, 1135–37 (9th Cir. 2016) (upholding the BIA’s definition). The BIA

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agreed with the IJ that Favela-Orozco’s “formulation lacked particularity
because the group is too amorphous and lacking in outer limits that provide a
clear benchmark for determining who falls within the family group.”
Favela-Orozco testified that the only member of his family to have
experienced any direct harm is a cousin, who was kidnapped in 2011.1
Therefore, the PSG would have to extend to his cousins to support his claim for
asylum. But, as the BIA determined, Favela-Orozco did not “provide a clear
benchmark for determining who falls within the group.” Nguyen v. Barr, 983
F.3d 1099, 1103 (9th Cir. 2020) (internal quotation marks and citation omitted).
Favela-Orozco seems to argue in part that his family’s perceived wealth and
educational status establish his proposed PSG’s particularity. But “[t]he
ultimate question [in the particularity inquiry] is whether a group ‘can
accurately be described in a manner sufficiently distinct that the group would be
recognized, in the society in question, as a discrete class of persons.’”
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091 (9th Cir. 2013) (en banc)
(citation omitted). And the record does not compel the conclusion that
members of Favela-Orozco’s family would be recognized as a “discrete class of
persons” in Mexican society.
Substantial evidence also supports the BIA’s conclusion that Favela-
Orozco has not established a nexus between his proposed PSG and his feared
1 The hospital that Favela-Orozco’s sister works at was also
threatened.

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harm. Favela-Orozco testified that his parents, sister, aunts, and uncles have not
experienced direct harm in Mexico. Favela-Orozco has not testified or
otherwise established that his family suffered any threats or harm in the years
since his cousin’s kidnapping. Favela-Orozco has also failed to establish that
the kidnapping was due to family ties; his cousin’s colleague was kidnapped in
the same incident, undermining the claimed familial motivation and raising the
possibility of a professional-status motivation. Cf. Pedro-Mateo v. INS, 224
F.3d 1147, 1150 (9th Cir. 2000) (“Under the substantial evidence standard of
review, the court of appeals must affirm when it is possible to draw two
inconsistent conclusions from the evidence.”). And Favela-Orozco’s arguments
that his family’s perceived wealth makes his family a target bolsters the
conclusion that any future persecution would be based on economic reasons and
not a protected ground. See Barrios v. Holder, 581 F.3d 849, 856 (9th Cir.
2009) (holding that there was no nexus where the evidence instead supported
the conclusion that the gang victimized Petitioner “for economic and personal
reasons”), abrogated on other grounds by Henriquez-Rivas, 707 F.3d 1 at 1093.
2. For similar reasons, we also hold that the BIA did not err in
rejecting Favela-Orozco’s withholding of removal claim. First, a withholding
of removal applicant must prove that a “cognizable protected ground is ‘a
reason’ for future persecution,” Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th
Cir. 2021) (emphasis added), which Favela-Orozco has failed to do. Second,
while the standard for withholding of removal is not as demanding as that for

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asylum, see Barajas-Romero v. Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017)
(explaining that the withholding statute requires that the protected ground only
be “a reason” for feared harm, unlike the asylum statute which requires it be
“one central reason”), a finding of no nexus between the alleged protected
ground and any feared harm means that a petitioner cannot make the prima facie
case for either asylum or withholding, see Singh v. Barr, 935 F.3d 822, 827 (9th
Cir. 2019).
3. Substantial evidence supports the BIA’s determination that Favela-
Orozco is not eligible for CAT protection. An applicant must establish both that
it is more likely than not that he will be tortured upon return to his native
country, and that there is “sufficient state action involved in that torture.”
Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting
Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006)). Favela-
Orozco did not claim to have experienced any past harm—much less torture—
in Mexico. 8 C.F.R. § 1208.18(a)(2) (defining torture as “an extreme form of
cruel and inhuman treatment”). His family has largely been living in Mexico
safely. He did not establish that he would be risk of kidnapping. As Favela-
Orozco has not shown that he faces any personalized risk of torture beyond
general societal violence and official corruption, the record does not compel the
conclusion that he faces a clear probability of torture in Mexico.
PETITION FOR REVIEW DENIED.

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