Opinion
No. 16-70025
03-10-2020
ARIBERTO ROQUE- SANCHEZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A205-412-360 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Ariberto Roque-Sanchez, 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 decision denying his application for withholding of removal and relief under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review 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 grant in part the petition for review, and we remand.
Substantial evidence supports the agency's denial of CAT relief because Roque-Sanchez failed to show that it is more likely than not he would 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).
As to withholding of removal, the BIA did not err in finding that Roque-Sanchez's proposed social group "young men targeted for recruitment by the drug cartels and gangs" is not cognizable. 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))).
The BIA also considered the proposed social group "young men returning from the United States to Mexico." In finding that the group was not cognizable, the BIA failed to consider the age and gender characteristics of the proposed social group. See Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014) (explaining that to determine whether a group is a particular social group the agency must make a case-by-case determination as to whether the group is recognized by the particular society in question); see also Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) ("In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency. If we conclude that the BIA's decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case."). Thus, we grant the petition for review as to Roque-Sanchez's withholding of removal claim, and remand to the agency for further consideration of his withholding of removal claim consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.