MONTEALEGRE v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-05-05No. No. 15-70613

Summary · law.co

Holding. The court denied the petition for review, affirming the BIA's dismissal of the appeal and rejecting the applicant's claims for asylum, withholding of removal, and Convention Against Torture protection.

Lilian Pineda Montealegre, a Guatemalan national, sought review of the Board of Immigration Appeals' decision upholding an immigration judge's denial of her asylum, withholding of removal, and Convention Against Torture protection claims. The court applied de novo review to the legal question of whether she belonged to a cognizable particular social group, while reviewing the agency's factual findings for substantial evidence.

The court found no error in the BIA's conclusion that Pineda Montealegre failed to establish membership in a cognizable particular social group under the required three-part test: shared immutable characteristics, particularized definition, and social distinctness within her country. Additionally, substantial evidence supported the finding that she did not demonstrate persecution based on any protected ground—her situation involved harassment by criminals motivated by theft or random gang violence, which lack the necessary connection to a protected basis for asylum.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether applicant established membership in a cognizable particular social group
Whether applicant demonstrated persecution on account of a protected ground
Whether applicant's claims were time-barred or failed on Convention Against Torture grounds

Procedural posture

The applicant petitioned for review of a BIA decision that had dismissed her appeal from an immigration judge's denial of relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Lilian M. Pineda Montealegre, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judges decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture.

We have jurisdiction under 8 U.S.C. § 1252. We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIAs interpretation of the governing statutes and regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241–42 (9th Cir. 2020). We review for substantial evidence the agencys factual findings. Id. at 1241. We deny the petition for review.

1. Pineda Montealegre does not challenge the agencys determinations that her application for asylum is time-barred or that she failed to establish eligibility for relief under the Convention Against Torture.

2. The BIA did not err in concluding that Pineda Montealegre failed to establish membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question’ ”) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)). In addition, substantial evidence supports the BIAs conclusion that Pineda Montealegre failed to establish that she would be persecuted on account of any protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An [applicants] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”). Thus, her claim for withholding of removal fails.

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.