Marcos Juan-Esteban v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS JUAN-ESTEBAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70745
Agency No. A074-115-940
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2022**
Pasadena, California
Before: BERZON, R. NELSON, and BADE, Circuit Judges.
Petitioner Marcos Juan-Esteban (Juan-Esteban), a native and citizen of
Guatemala, seeks review of the Board of Immigration Appeals’ (BIA) affirmance of
an immigration judge’s (IJ) denial of his application for withholding of removal and
protection under the Convention Against Torture (CAT). See 8 U.S.C §
* 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
DEC 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c), 1208.18. We have jurisdiction under 8
U.S.C. § 1252.
We review de novo the BIA’s “determination of purely legal questions
regarding the requirements of the Immigration and Nationality Act,” Arrieta v. INS,
117 F.3d 429, 430 (9th Cir. 1997) (citation and internal quotation marks omitted),
including whether a group constitutes a “particular social group,” Perdomo v.
Holder, 611 F.3d 662, 665 (9th Cir. 2010). We review the BIA’s factual findings as
to the existence of torture for substantial evidence. Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1078 (9th Cir. 2015). Substantial evidence means the factual finding
is “supported by reasonable, substantial and probative evidence on the record
considered as a whole.” Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1163 (9th Cir.
2013) (citation and internal quotation marks omitted). We review claims asserting
a due process violation de novo. Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir.
2020). We deny the petition.
1. Juan-Esteban argues that, if he returns to Guatemala, it is more likely
than not that he will be persecuted on account of his family ties and his diabetes.1
1 Juan-Esteban also argued before the IJ that he was a member of the particular
social group he defined as “persons who return to Guatemala after spending a
prolonged period of time outside the country and will be perceived as wealthy.”
He failed to challenge the IJ and BIA’s rejection of that purported particular social
group in his opening brief, so he has waived any such challenge. See Lopez-
Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013).

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Juan-Esteban failed to raise his family-based particular social group before
the IJ, and the BIA deemed it waived. It did not err in doing so. See Honcharov v.
Barr, 924 F.3d 1293, 1297 (9th Cir. 2019). The BIA also did not err in rejecting
Juan-Esteban’s application for relief based on his fear of inadequate medical
treatment in Guatemala for his diabetes. See Mendoza-Alvarez v. Holder, 714 F.3d
1161, 1164–65 (9th Cir. 2013) (per curiam) (rejecting proposed group of “all insulin-
dependent diabetics” and holding that the Mexican government’s failure to provide
adequate medical care to insulin-dependent diabetics does not establish persecution).
Therefore, Juan-Esteban failed to demonstrate any nexus to a protected social group
that would support his application for withholding of removal.
2. Substantial evidence supports the BIA’s conclusion that Juan-Esteban
failed to show that he is more likely than not to be tortured by or with the
acquiescence of the Guatemalan government. The record indicates that Juan-
Esteban was never tortured in Guatemala and supports the BIA’s conclusion that his
fear of torture is “based on a series of assumptions and speculation” arising from
past incidents involving his family and a generalized fear of violence. A generalized
fear of violence in Guatemala is insufficient to meet the standard for CAT protection.
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). The evidence Juan-
Esteban submitted of general corruption in Guatemala and the government’s

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ineffectiveness in combatting crime also does not compel the conclusion the
government would acquiesce to his torture.
3. As to Juan-Esteban’s due process claim, he cannot demonstrate either
a violation of rights or prejudice. See Padilla-Martinez v. Holder, 770 F.3d 825, 830
(9th Cir. 2014). The record indicates that Juan-Esteban declined the Q’anjob’al
interpreter and elected to proceed in Spanish, and he does not identify any part of
the proceedings that he failed to understand. Juan-Esteban also fails to make a
cognizable claim for ineffective assistance of counsel based on his counsel’s alleged
failure to investigate whether he could make a claim for relief on account of his
indigenous status. The BIA rejected Juan-Esteban’s ineffective assistance of
counsel claim because he failed to comply with the requirements of Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988), and Juan-Esteban fails to challenge that
determination in any way.
PETITION DENIED.

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