Teresita Calderon Calvillo v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERESITA CALDERON CALVILLO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73794
Agency No. A205-739-759
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.
Teresita Calderon Calvillo, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from an immigration judge’s decision denying her applications for asylum,
withholding of removal and protection under the Convention Against Torture
* 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
APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“CAT”). We have jurisdiction under 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 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 in part and dismiss in part the petition for review.
Because Calderon Calvillo does not challenge the agency’s determination
that the asylum application is untimely, we do not address it. See Rios v. Lynch,
807 F.3d 1123, 1125 n.1 (9th Cir. 2015).
As to withholding of removal and Calderon Calvillo’s proposed particular
social group of “homosexual women,” we do not disturb the agency’s
determination that she failed to establish she suffered harm that rises to the level of
persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003)
(discrimination and harassment did not rise to the level of persecution).
Substantial evidence supports the agency’s conclusion that Calderon Calvillo failed
to establish a clear probability of future persecution on this ground. See id. at 1018
(possibility of future persecution “too speculative”).
As to her proposed particular social group of “individuals who have been in
the United States for many years and will be perceived to have money,” the BIA
did not err in concluding that Calderon Calvillo failed to establish membership in a

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cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th
Cir. 2016) (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, Barbosa v. Barr, 926 F.3d 1053 (9th Cir.
2019) (particular social group of “individuals returning to Mexico from the United
States who are believed to be wealthy” not cognizable). Thus, Calderon Calvillo’s
withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT protection
because Calderon Calvillo failed to show it is more likely than not she will be
tortured by or with the consent or acquiescence of the government if returned to
Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
We do not consider the materials Calderon Calvillo references in her
opening brief that are not part of the administrative record. See Fisher v. INS, 79
F.3d 955, 963-64 (9th Cir. 1996) (en banc).
We lack jurisdiction to consider whether Calderon Calvillo’s case warrants a
favorable exercise of prosecutorial discretion. See Vilchiz-Soto v. Holder, 688 F.3d
642, 644 (9th Cir. 2012).

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The temporary stay of removal remains in place until the mandate
issues. The motion for a stay of removal is otherwise denied.
PETITION FOR REVIEW DENIED in part, DISMISSED in part.

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