NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID VASQUEZ VASQUEZ,

 Petitioner,

 v.

MERRICK B. GARLAND, U.S. 

ATTORNEY GENERAL,

 Respondent.

No. 21-892

Agency No. A205-713-068

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 17, 2023**

Pasadena, California

Before: LEE, BRESS, MENDOZA, Circuit Judges.

David Vasquez Vasquez (Vasquez), a native and citizen of Mexico, 

petitions for review of a decision of the Board of Immigration Appeals (BIA) 

denying his applications for cancellation of removal, asylum, withholding of 

removal, and relief under the Convention Against Torture (CAT). We have 

jurisdiction under 8 U.S.C. § 1252. We dismiss the petition in part and deny it in 

* 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

MAR 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

part.

1. We lack jurisdiction over Vasquez’s challenge to the BIA’s denial 

of cancellation of removal because Vasquez advances no colorable legal or 

constitutional claims. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); MendezCastro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (“[A] petitioner may not 

create the jurisdiction that Congress chose to remove simply by cloaking an abuse 

of discretion argument in constitutional garb.” (quotation omitted)). The BIA 

denied Vasquez’s application as a matter of overall discretion, and Vasquez raises 

no specific challenge to this finding, let alone a colorable legal or constitutional 

claim.

2. We review denials of asylum and withholding of removal for 

substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). 

Under that standard, we “must uphold the agency determination unless the 

evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d 

1025, 1028 (9th Cir. 2019). Substantial evidence supports the BIA’s denial of 

asylum and withholding of removal. 

To be eligible for asylum, Vasquez must demonstrate a “likelihood of 

‘persecution or a well-founded fear of persecution on account of race, religion, 

nationality, membership in a particular social group, or political opinion.’” 

Sharma, 9 F.4th at 1059 (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish 

eligibility for withholding of removal, he must show a “clear probability” of such 

harm. Id. (quotation omitted).
3

The BIA denied Vasquez’s asylum application as untimely, and Vasquez 

has not challenged that determination in his petition for review. See 8 U.S.C. 

§ 1158(a)(2)(B) (alien must “demonstrate[] by clear and convincing evidence that 

the application has been filed within 1 year after the date of the alien’s arrival in 

the United States.”); Al Ramahi v. Holder, 725 F.3d 1133, 1134–35 (9th Cir. 

2013) (discussing one-year time limit on asylum applications). This is dispositive 

of Vasquez’s asylum application. See Nguyen v. Barr, 983 F.3d 1099, 1102 (9th 

Cir. 2020) (issues not raised in the opening brief are waived).

The BIA also denied asylum and withholding of removal on the ground 

that Vasquez’s proposed social group was not cognizable. Vasquez proposed the 

following social group: 

Americanized Mexican fathers returning to Mexico with at least one 

U.S. citizen child at direct risk for kidnapping or violence by illegal 

drug cartels or other criminals due to 1) opposition to drug cartel and 

criminal activity, and 2) affirmative steps taken to combat illegal 

drug cartel and criminal activity. 

The BIA determined that this social group was circularly defined by the 

harm Vasquez fears (i.e., violence or kidnapping in Mexico). Such circularity is 

impermissible under longstanding BIA precedent. See Matter of M-E-V-G-, 26 

I. & N. Dec. 227, 236 n.11 (B.I.A. 2014); see also Diaz-Reynoso v. Barr, 968 

F.3d 1070, 1080 (9th Cir. 2020) (discussing the “well-established principle that a 

particular social group must exist independently of the harm asserted”). Vasquez 

does not challenge this finding in his petition, which is independently dispositive 

of his applications for asylum and withholding of removal.
4

Finally, the BIA also concluded that Vasquez had not shown that his 

proposed social group is viewed as socially distinct within Mexican society. A 

particular social group is cognizable only if it is “sufficiently distinct that the 

group would be recognized, in the society in question, as a discrete class of 

persons.” Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091 (9th Cir. 2013) (en 

banc) (quotation omitted). Because Vasquez presented no evidence to support 

such a finding, the record does not “compel[] a . . . conclusion” contrary to that 

of the BIA. Duran-Rodriguez, 918 F.3d at 1028.

3. Substantial evidence supports the BIA’s denial of CAT relief. 

Sharma, 9 F.4th at 1066 (standard of review). “To qualify for CAT relief, a 

petitioner must show that [he] more likely than not will be tortured if [he] is 

removed to [his] native country.” Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 

2013). In this case, Vasquez presented no evidence that he was tortured in 

Mexico or that he would be tortured if he returned there. Because Vasquez 

referred only to generalized violence in Mexico, substantial evidence supports the 

BIA’s denial of CAT relief. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 

(9th Cir. 2010) (per curiam) (explaining that “Petitioners’ generalized evidence 

of violence and crime in Mexico is not particular to Petitioners and is insufficient” 

to meet the standard for CAT relief).

DISMISSED in part and DENIED in part.1

1 Petitioner’s motion for stay of removal is denied as moot.