Aroldo Gabriel-Carrilo v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AROLDO GABRIEL-CARRILO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-627
Agency No. A095-743-565
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2024**
Pasadena, California
Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges
Aroldo Gabriel-Carrilo, a native and citizen of Guatemala, seeks review of the
Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s
(IJ) denial of withholding of removal and relief under the Convention Against
* 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
FEB 23 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the
petition.
“We review questions of law, such as whether a proposed particular social
group is cognizable for purposes of withholding of removal, de novo.” Macedo
Templos v. Wilkinson, 987 F.3d 877, 879 (9th Cir. 2021). And we review factual
findings for substantial evidence, upholding them unless the evidence compels a
contrary result. Flores-Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021).
1. Withholding of removal. By failing to raise the issue in his opening brief,
Gabriel-Carrilo waived any challenge to the BIA’s conclusion that his proposed
particular social group (“PSG”)—“persons subjected to child molestation as young
as five years old”—is non-cognizable, as the group is defined solely by harm
common to its members. See Nguyen v. Barr, 983 F.3d 1099, 1102 (9th Cir. 2020)
(issues not raised in the opening brief are waived).
Gabriel-Carrilo’s claim based upon his other PSGs fails, too. He waived any
challenge to the BIA’s determination that he failed to establish a “nexus” between
his claimed persecution and any imputed political opinion or membership in his
proposed group of “America returned Guatemalans being wealthy and particularly
targeted by gangs,” or his proffered familial groups. See Hernandez v. Garland, 47
F.4th 908, 916 (9th Cir. 2022) (refusing to address an argument that the petitioner
did not “specifically and distinctly” argue in his opening brief).

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In any event, substantial evidence supports the agency’s conclusion that
Gabriel-Carrilo failed to establish that any past harm that he experienced at the
orphanages was inflicted on account of a statutorily protected ground. Substantial
evidence also supports the BIA’s finding that Gabriel-Carrilo failed to establish that
he will “more likely than not” face persecution in Guatemala on the basis of imputed
political opinion or membership in his returnee or familial PSGs. See Wakkary v.
Holder, 558 F.3d 1049, 1060 (9th Cir. 2009); 8 C.F.R. § 1208.16(b)(2).
2. CAT. Substantial evidence supports the agency’s denial of CAT relief on
the grounds that Gabriel-Carrilo failed to establish that he would more likely than
not be tortured upon his return to in Guatemala and that the Guatemalan government
would acquiesce in such conduct. For nearly four decades, he has neither been
threatened nor harmed by, nor been in contact with, anyone who previously
subjected him to abuse at the orphanages; and there is no evidence that any of his
perceived torturers maintain an interest in harming him, owing both to the passage
of time and the fact that he is no longer a child. See Garcia v. Wilkinson, 988 F.3d
1136, 1148 (9th Cir. 2021) (noting that a “speculative fear of torture is not sufficient
to satisfy the applicant’s burden” for protection under CAT).
PETITION DENIED.1
1 The motion for a stay of removal is denied.

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