Alonzo Nicolas v. Garland

NOT FOR PUBLICATION FILED MAR 20 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Juan Francisco Alonzo Nicolas; Francisco No. 21-338 Alexis Alonzo Rufino, Agency Nos. A200-295-781 Petitioners, A209-164-221 v. MEMORANDUM * Merrick B. Garland, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 13, 2023 ** Pasadena, California Before: LEE, BRESS, MENDOZA, Circuit Judges. Petitioners Juan Francisco Alonzo Nicolas and Francisco Alexis Alonzo Rufino, both natives and citizens of Guatemala, petition for review of a Board of Immigration Appeals (“BIA”) order upholding an Immigration Judge’s (“IJ”) * 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). denial of Petitioners’ applications for asylum and other forms of relief. 1 We review de novo the BIA’s determinations on questions of law and mixed questions of law and fact. Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013). The BIA’s factual findings are reviewed for substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petitions. I. Petitioners argue the BIA lacked jurisdiction because their initial Notices to Appear did not include a time and date for their removal hearings. Because Petitioners did not raise this argument before the agency, we lack jurisdiction to consider it. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). II. Petitioners’ asylum claim is based on membership in the proposed social group of those who “fear of retribution for refusal to join a gang.” We have previously rejected proposed particular social groups based on resistance to gang recruitment for lack of particularity. See Barrios v. Holder, 581 F.3d 849, 854–55 (9th Cir. 2009) (rejecting “young men in Guatemala who resist gang recruitment” as a cognizable particular social group), abrogated in part on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en 1 Petitioners’ other forms of relief include withholding of removal, protection under the Convention Against Torture, and voluntary departure. Petitioners do not challenge, and therefore waive, these issues. See Rios v. Lynch, 807 F.3d 1123, 1125 n.1 (9th Cir. 2015) (explaining that issues not specifically raised and argued in a party’s brief are waived). 2 21-338 banc). Petitioners failed to show Guatemalan society views “fear of retribution for refusing to join a gang” as a particular social group. We conclude the BIA did not err in affirming the IJ’s denial of Petitioners’ asylum claim. 2 The temporary stay of removal remains in place until the mandate issues. PETITIONS DENIED. 2 Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) does not alter our conclusion. In Pirir-Boc, we held that the BIA erred in failing to consider evidence of how Guatemalan society viewed a proposed particular social group. Id. at 1084. Here, the IJ considered Petitioners’ only society-specific evidence—the 2017 Guatemala Human Rights Report—and determined it was insufficient to demonstrate that “fear of retribution for refusal to join a gang” was a particular social group. The record lacks any country condition report, news report, law, proposed legislation, or expert testimony demonstrating social distinction. 3 21-338