ENRIQUE GOMEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-19No. No. 17-73006

Summary · law.co

Holding. The petition for review is denied in part and dismissed in part. The court affirmed the agency's denial of withholding of removal and Convention Against Torture relief because Gomez failed to establish membership in a cognizable particular social group and failed to demonstrate he would more likely than not face torture by or with the acquiescence of the Guatemalan government.

Guillermo Enrique Gomez, a Guatemalan citizen, sought review of the Board of Immigration Appeals' decision rejecting his claims for withholding of removal and relief under the Convention Against Torture. Gomez argued he faced persecution in Guatemala based on membership in a particular social group and feared torture if returned. The court examined whether Gomez satisfied the legal requirements for protection, including whether he belonged to a cognizable social group composed of members sharing an immutable characteristic, defined with particularity, and socially distinct in Guatemalan society.

The court found substantial evidence supported the agency's determination that Gomez did not establish membership in a qualifying particular social group or demonstrate that any harm he feared would be based on a protected ground. The court rejected Gomez's argument that his visible decorative tattoos—which were not gang-related—should have been considered in the withholding analysis, finding the record did not support this contention. Additionally, the court lacked jurisdiction to consider a new proposed social group Gomez raised for the first time on appeal because it had not been presented to the immigration agency.

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

Key issues

Whether Gomez established membership in a cognizable particular social group for withholding of removal purposes
Whether the agency adequately considered evidence regarding visibility of decorative tattoos
Whether Gomez demonstrated a clear probability of torture based on government involvement or acquiescence
Jurisdictional limits on raising new social group theories for the first time on appeal

Procedural posture

Gomez petitioned for review of the BIA's dismissal of his appeal from an immigration judge's decision denying his applications for withholding of removal and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Guillermo Enrique Gomez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 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 review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

The agency did not err in concluding that Gomez did not 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))). Substantial evidence supports the BIAs determination that Gomez otherwise failed to establish the harm he fears in Guatemala would be on account of a 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”).

Gomezs contention that the BIA failed to consider evidence of the visibility of his decorative, not gang-related tattoos in its withholding analysis fails as unsupported by the record. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency need not write an exegesis on every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the presumption that the BIA reviewed the record).

To the extent Gomez raises a new proposed particular social group in his opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

Thus, Gomezs withholding of removal claim fails.

Substantial evidence supports the agencys denial of CAT relief because Gomez failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if he returned to Guatemala. See Andrade v. Lynch, 798 F.3d 1242, 1244-45 (9th Cir. 2015) (substantial evidence supported the agencys finding that petitioner being deported from a wealthier country with “decorative, not gang-related” tattoos failed to establish a clear probability of torture).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.