NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLEN CERVANTES CASTANEDA; MISAEL OSORNIO CERVANTES,

Petitioners,

v.
MERRICK B. GARLAND, Attorney General,

Respondent. No. 17

- 70303

Agency Nos. A206

- 912

- 478

A206

- 912

- 479

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 15, 2022 * * San Francisco, California

Before: CHRISTEN and BRESS, Circuit Judges, and FE INERMAN, ** * District Judge.

Marlen Cervantes Castaneda , a citizen of Mexico, seeks review of a Board of

* 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 Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. 

# FILED

MAR 17 2022

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Immigration Appeals (BIA) decision dismissing her appeal of an Immigration Judge

(IJ) order denying her requests for asylum, withholding of removal, and relief under

the Convention Against Torture (CAT). 1 We review for substantial evidence and

may grant relief only if the record compels a contrary conc lusion. Yali Wang v.

Sessions , 861 F.3d 1003, 1007 (9th Cir. 2017). We have jurisdiction under 8 U.S.C.

§ 1252 and we deny the petition.

1. Substantial evidence supports the denial of asylum and withholding of

removal. “To be eligible for asylum, a pet itioner has the burden to 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 v. Garland , 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). “To be eligible for withholding of removal, the petitioner must
discharge this burden by a clear probability.” Id

. ( internal quotation marks omitted).

The BIA reasonably determined that Cervantes had not demonstrated a

likelihood of persecution on account of a protected ground. Cervantes’s then

husband’s r efusal to join the Knights Templar gang , without more, does not form

the basis for a protected poli tical opinion or a particular social group. See Ramos

Lopez v. Holder , 563 F.3d 855, 861

– 62 (9th Cir. 2009)
, abrogated on other grounds

1 Cervantes’s son, Misael Osornio Cervantes, is a derivative applicant on her request for asylum.3

by Henriquez

- Rivas v. Holder , 707 F.3d 1081 (9th Cir. 2013) (en banc) ; Santos

Ponce v. Wilkinson , 987 F.3d 886, 890 (9t h Cir. 2021). T o the extent Cervantes

claims membership in the proposed group of Mexican citizens returning from the

United States, that social group also fails. See Delgado

- Ortiz v. Holder , 600 F.3d

1148, 1151

– 52 (9th Cir. 2010) (“Petitioners’ proposed social group, ‘ returning

Mexicans from the United States, ’ is

. . . too broad to qualify as a cognizable social
group.”). 2

Even if Cervantes’s proposed groups were cognizable, substantial evidence
supports the BIA’s determination t hat she would not be harmed because of her

membership in those groups. Cervantes testified that the gangs treat ed many people

in her town in the same manner, and that her family continues to live there unharmed.

“ A n alien’s desire to be free from harassm ent by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground.” Zetino v.

Holder , 622 F.3d 1007, 1016 (9th Cir. 2010).

2. Substantial evidence supports the denial of CAT relief

. An applicant

for CAT protec tion must demonstrate that “she will more likely than not be tortured

with the consent or acquiescence of a public official if removed to her native

country.” Xochihua

-

Jaimes v. Barr , 962 F.3d 1175, 1183 (9th Cir. 2020).

2 To the extent Cervantes claims her family is a particular social group , she did not raise that theory before the BIA . T he claim is thus unexhausted. See 8 U.S.C. § 1252(d)(1).4

Cervantes does not claim to have suffered past torture. Nor has she put

forward evidence showing that the Mexican government would consent or
acquiescence to her torture. Although Cervantes claims that one of the criminal

organizations in her town is a state actor, her testimony did not distinguish between

criminal groups and focused primarily on a different group, the Knights Templar.

Regardless, general violence and unrest caused by crimin al groups does not suffice

for CAT protection. See Andrade

- Garcia v. Lynch , 828 F.3d 829, 836 (9th Cir.

2016) (“The inability to bring the criminals to justice is not evidence of

acquiescence

. . . .”).

PETITION DENIED.