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PEREZ LOPEZ v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-01-25No. Nos. 18-71417

Summary

Holding. The petition in case No. 18-71417 is denied in part and dismissed in part; the petition in case No. 19-71606 is denied.

Cristina Perez-Lopez, a Guatemalan national, sought judicial review of immigration proceedings in which she was denied asylum, withholding of removal, and relief under the Convention Against Torture. The immigration judge and Board of Immigration Appeals both rejected her claims. On review, the court examined whether Perez-Lopez belonged to a cognizable particular social group—a required element for asylum eligibility—and found the agency's conclusion that she did not establish such membership was supported by law and facts.

The court upheld the denial of her Convention Against Torture claim, finding insufficient evidence that she would face torture by or with the government's consent if returned to Guatemala. The court also rejected Perez-Lopez's request to introduce country condition reports outside the administrative record and declined to review her challenge to the immigration judge's credibility assessment because she had not raised that issue before the agency. Additionally, the court found no abuse of discretion in the Board's denial of her motion to reopen, as she failed to demonstrate that a newly available legal theory regarding her social group classification would have changed the outcome.

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 for asylum purposes
  • Whether substantial evidence supports denial of Convention Against Torture relief
  • Whether Board of Immigration Appeals abused discretion in denying motion to reopen

Procedural posture

Perez-Lopez petitioned for review of the Board of Immigration Appeals' order dismissing her appeal from an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief, and the Board's denial of her motion to reopen.

Authorities cited

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Opinion

MEMORANDUM **

Cristina Perez-Lopez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judges (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) (petition No. 18-71417) and the BIAs order denying her motion to reopen (petition No. 19-71606). 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 for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review in No. 18-71417, and we deny the petition for review in No. 19-71606.

As to petition No. 18-71417, the agency did not err in concluding that Perez-Lopez 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))). Thus, Perez-Lopezs asylum and withholding of removal claims fail.

Substantial evidence supports the agencys denial of CAT relief because Perez-Lopez failed to show it is more likely than not she would be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

To the extent Perez-Lopez requests, in her opening brief, to take judicial notice of country condition reports that were not submitted to the agency, the request is denied. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc) (courts review is limited to the administrative record).

To the extent Perez-Lopez argues that the IJ improperly afforded her testimony less evidentiary weight, we lack jurisdiction to consider the contention. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

Perez-Lopezs request, raised in her opening brief, to remand for a determination on her asylum eligibility in the first instance based on her claimed membership in the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018), is denied because the record indicates the agency made a determination as to the merits of Perez-Lopezs asylum application.

As to petition No. 19-71606, the BIA did not abuse its discretion in denying Perez-Lopezs motion to reopen, where she did not establish that membership in the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018), would affect the outcome of her proceedings. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (“The BIA can deny a motion to reopen on any one of at least three independent grounds—failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.” (internal quotation marks and citation omitted)).

As stated in the courts July 20, 2018 and July 10, 2019 orders, the temporary stay of removal remains in place until issuance of the mandate.

PETITION NO. 18-71417 DENIED in part; DISMISSED in part.

PETITION NO. 19-71606 DENIED.