Diaz-Zacarias v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 11 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JACOBO LUIS DIAZ-ZACARIAS, No. 23-2226 Agency No. Petitioner, A205-833-743 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 9, 2024** San Francisco, California Before: KOH and JOHNSTONE, Circuit Judges, and SIMON, District Judge.*** Jacobo Luis Diaz-Zacarias, a native and citizen of Guatemala, petitions for review of an order from the Board of Immigration Appeals (“BIA”) dismissing his * 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). *** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. appeal of an order from an Immigration Judge (“IJ”) (collectively, “the Agency”) denying his applications for withholding of removal and protection under the Convention Against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C. § 1252(a)(1). When the BIA adopts the IJ’s decision under Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994), and offers additional reasoning, we review both decisions. Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). We deny the petition. To establish eligibility for withholding of removal, an applicant must show the existence of a nexus between past or feared future persecution and a statutorily protected ground. See 8 U.S.C. § 1231(b)(3)(A); Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). Contrary to Diaz-Zacarias’s contention, the Agency applied the correct nexus standard for withholding. See Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021) (“A withholding of removal applicant . . . must prove only that a cognizable protected ground is ‘a reason’ for future persecution.”) (internal citation omitted). Substantial evidence supports the Agency’s finding that the caller was motivated only by his criminal purpose, not Diaz-Zacarias’s membership in either of his proposed particular social groups. See Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1019 (9th Cir. 2023) (“Where the 1 Diaz-Zacarias has not challenged the denial of CAT relief in his opening brief. Therefore, he has abandoned the issue. See Rios v. Lynch, 807 F.3d 1123, 1125 n.1 (9th Cir. 2015). 2 23-2226 record indicates that the persecutor’s actual motivation for threatening a person is [his criminal activity], the record does not compel finding that the persecutor threatened the target because of a protected characteristic[.]”). Because the nexus finding is dispositive of his withholding claim, we do not address Diaz-Zacarias’s arguments as to whether his proposed particular social groups were cognizable or whether the threats rose to the level of persecution. PETITION DENIED. 2 2 The temporary stay of removal shall remain in effect until issuance of the mandate. The motion for stay of removal is otherwise denied. 3 23-2226