Leonel Herrera v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONEL HERRERA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-70770
Agency No. A073-992-423
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
Leonel Herrera, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his applications for asylum,
withholding of removal, relief under the Convention Against Torture (“CAT”), and
adjustment of status. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
* 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
SEP 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008),
except to the extent that deference is owed to the BIA’s interpretation of the
governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th
Cir. 2004). We review for substantial evidence the agency’s 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.
The agency did not err in finding that Herrera failed to establish membership
in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.
2016) (in order to demonstrate membership in a particular 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 agency’s determination that
Herrera failed to establish that any harm he fears in Mexico would be on account
of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(“An [applicant’s] desire to be free from harassment by criminals motivated by
theft or random violence by gang members bears no nexus to a protected ground”);
Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (rejecting petitioner’s

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claim where he “provided no evidence that his opposition to the gang’s criminal
activity was based on political opinion”), abrogated on other grounds
by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). We
reject as unsupported by the record Herrera’s contentions that the agency ignored
or improperly construed his claims and evidence. Thus, Herrera’s asylum and
withholding of removal claims fail.
Substantial evidence also supports the agency’s denial of CAT relief because
Herrera failed to show it is more likely than not that 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).
As to adjustment of status, we lack jurisdiction to review the agency’s
discretionary determination that Herrera failed to show extreme hardship to a
qualifying relative if removed. See 8 U.S.C. § 1252(a)(2)(B)(i); Mendoza v.
Holder, 623 F.3d 1299, 1301-02 (9th Cir. 2010) (court lacked jurisdiction to
review an IJ’s denial of a 212(h) waiver based on the discretionary determination
that petitioner failed to establish extreme hardship). To the extent Herrera argues
that the BIA applied the incorrect legal standard when it determined that he failed

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to show extreme hardship, we reject his contention as unsupported by the record.
See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (the agency
applied the correct legal standard where it expressly cited and applied relevant case
law in rendering its decision).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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