CASTILLO CUANDO v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-18No. No. 15-71599

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part, upholding the Board of Immigration Appeals' order denying asylum, withholding of removal, and Convention Against Torture relief.

Jose Leonel Castillo Cuando, a Mexican national, sought review of a denial of asylum, withholding of removal, and relief under the Convention Against Torture. The court examined whether the immigration agency properly rejected his claims based on membership in particular social groups and government persecution. The court found that Castillo Cuando failed to establish the necessary connection between any harm he suffered and a protected ground for asylum eligibility.

On his Convention Against Torture claim, the court determined that Castillo Cuando did not present sufficient evidence that he would more likely than not face torture by the Mexican government or with its consent if returned. Additionally, the court lacked jurisdiction to review certain social group arguments because he had not raised them before the immigration agency. The court upheld the agency's factual findings as supported by substantial evidence in the record.

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

Key issues

Whether petitioner established membership in a legally cognizable particular social group
Whether harm was inflicted on account of a protected ground required for asylum
Whether petitioner established entitlement to Convention Against Torture relief
Waiver of issues not raised before the immigration agency

Procedural posture

Castillo Cuando petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from an immigration judge's denial of his asylum and relief applications.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Jose Leonel Castillo Cuando, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

Castillo Cuando does not raise, and has therefore waived, any challenge to the BIAs determination that he failed to establish that the proposed particular social groups defined as 1) “persons that have been threatened by criminal organizations and whose family member has been killed by the criminal organizations,” and 2) “persons who were extorted by extortionists in Mexico” are legally cognizable. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a partys opening brief are waived).

Substantial evidence supports the agencys determination that Castillo Cuando failed to show that the harm he suffered or fears in Mexico was or would be on account of a protected ground, including family membership. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of his membership in such group”); 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”). We lack jurisdiction to consider Castillo Cuandos contentions regarding his membership in the proposed particular social group defined as “a family whose father had been killed and which has been targeted by an extortionist group” because he failed to raise this group to the BIA. 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, Castillo Cuandos asylum and withholding of removal claims fail.

Substantial evidence also supports the agencys denial of CAT relief because Castillo Cuando failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not establish the necessary state action for CAT relief). Castillo Cuandos contention that the agency erred in denying CAT relief is unsupported by the record.

As stated in the courts August 11, 2015 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.