Cesar Galindo Gonzalez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR GALINDO GONZALEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-764
Agency No.
A215-561-732
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2023**
San Francisco, California
Before: PAEZ, CLIFTON, and H.A. THOMAS, Circuit Judges.
Petitioner Cesar Galindo Gonzalez, a native and citizen of Mexico, seeks
review of the Board of Immigration Appeals’s (BIA) dismissal of his appeal of
an Immigration Judge’s (IJ) decision denying his applications for withholding
of removal and for protection under the Convention Against Torture (CAT).
We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the petition.
* 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
APR 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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When as here, the BIA adopts the decision of the IJ, this court reviews the
IJ’s decision as if it were that of the BIA. Abebe v. Gonzales, 432 F.3d 1037,
1039 (9th Cir. 2005). “We review purely legal questions de novo, and the
agency’s factual findings for substantial evidence.” Perez-Portillo v. Garland,
56 F.4th 788, 792 (9th Cir. 2022). Motions to remand are reviewed under an
abuse of discretion standard. Tzompantzi-Salazar v. Garland, 32 F.4th 696, 702
(9th Cir. 2022). “Under that standard, this court defers to the Board’s decision
unless it acted arbitrarily, irrationally, or contrary to law.” Id.
The BIA properly affirmed the IJ’s determination that Petitioner was
ineligible for withholding of removal because his proposed social group of
returning Mexican immigrants is not cognizable. See, e.g., Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (Mexicans returning home
from the United States were too broad to constitute a cognizable social group);
Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (Claimed social
group of “imputed wealthy Americans” was insufficiently particular to
constitute a discrete class of persons.). Petitioner’s proposed social group is
therefore foreclosed by this court’s precedents, and he fails to show any reasons
to depart from them.
As for the CAT claim, Petitioner does not discuss the IJ’s denial of his
application with any elaboration. The claim is therefore waived. See Cui v.
Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013) (Petitioner waived any
objection to denial of CAT relief by failing to address issue in his brief); Husyev
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v. Mukasey, 528 F.3d 1172, 1183 (9th Cir. 2008) (Because petitioner failed to
advance argument in support of CAT claim, the issue was waived).
In any event, Petitioner’s CAT claim fails on the merits because he did
not meet his burden of showing that it was more likely than not that he would be
tortured if returned to Mexico. Akosung v. Barr, 970 F.3d 1095, 1104 (9th Cir.
2020) (“Under the CAT regulations, the applicant bears the burden of
establishing that ‘it is more likely than not that he or she would be tortured if
removed.’” (quoting 8 C.F.R. § 1208.16(c)(2)). Petitioner presented neither
evidence of past torture nor evidence that he would be sought out for torture by
the Mexican authorities or those acting with their acquiescence.
The BIA did not abuse its discretion in denying Petitioner’s motion to
remand. Petitioner’s argument that he was “eligible for cancellation of removal”
because of his marriage to a U.S. citizen, required him to establish a prima facie
case for the relief sought. See Tzompantzi-Salazar, 32 F.4th at 703. Eligibility
for cancellation of removal requires, among other things, showing that
Petitioner’s “removal would impose an ‘exceptional and extremely unusual’
hardship on a close relative who is either a citizen or permanent resident of this
country.” Pereida v. Wilkinson, 141 S. Ct. 754, 759 (2021) (quoting 8 U.S.C. §
1229b(b)(1)). Yet Petitioner offered no evidence or argument that his U.S.
citizen wife would suffer “an exceptional and extremely unusual hardship” if he
were removed. In the alternative, the BIA also construed Petitioner’s motion for
remand as an argument stating that he was eligible for adjustment of status
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under 8 U.S.C. § 1255 through his marriage to a U.S. citizen. Yet as the BIA
determined, Petitioner presented no evidence to indicate that he is the
beneficiary of an approved visa petition, nor did he present evidence showing
that he had a visa petition pending. Accordingly, the BIA properly determined
that Petitioner had not established a prima facie case for cancellation of removal
or adjustment of status.
PETITION DENIED.
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