Jose Mariano De Marcos Garcia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MARIANO DE MARCOS GARCIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-437
Agency No.
A216-554-012
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
May 16, 2023**
Before: BENNETT, MILLER, and VANDYKE, Circuit Judges.
Jose Mariano De Marcos Garcia, a native and citizen of Mexico, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s decision denying his
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
* 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
MAY 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 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 BIA’s
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 agency’s factual findings. Id. at 1241. We deny the petition for
review.
In his opening brief, De Marcos Garcia fails to challenge the agency’s
dispositive determination that his asylum application was time-barred and that
he did not establish changed or extraordinary circumstances to excuse the
untimely filing. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir.
2013). De Marcos Garcia also fails to challenge the agency’s denial of CAT
protection. Id. Thus, we deny the petition for review as to his asylum and CAT
claims.
The agency did not err in concluding that De Marcos Garcia 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))); see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th
Cir. 2010) (“returning Mexicans from the United States” does not constitute a

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particular social group). In his opening brief, De Marcos Garcia does not
challenge the agency’s conclusions regarding the proposed particular social
groups based on being a witness to a crime and based on opposition to criminal
groups and gang recruitment. See Lopez-Vasquez, 706 F.3d at 1079-80.
Substantial evidence supports the agency’s determination that De Marcos
Garcia otherwise failed to establish he was or would be persecuted 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”). Thus, De Marcos Garcia’s withholding of removal claim fails.
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.

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