NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELOY SALINAS-MONTENEGRO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 21-3

Agency No.

A029-456-196

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 19, 2023**

Portland, Oregon

Before: RAWLINSON and SUNG, Circuit Judges, and MORRIS, District 

Judge.

***

Petitioner Eloy Salinas-Montenegro, a native of Mexico, petitions for 

review of a Board of Immigration Appeals (“BIA”) decision dismissing his 

appeal of an Immigration Judge (“IJ”) order that denied his applications for 

* 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 Brian M. Morris, United States District Judge for 

the District of Montana, sitting by designation.

FILED

MAY 4 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-3

withholding of removal and protection under the Convention Against Torture 

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the 

petition.

1

We uphold the BIA’s factual determinations so long as they are supported 

by substantial evidence. See Flores Molina v. Garland, 37 F.4th 626, 632 (9th 

Cir. 2022). We review questions of law de novo. See id. Where “the BIA issues 

its own decision but relies in part on the immigration judge’s reasoning, we 

review both decisions.” Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 

2012).

1. The BIA did not err in holding that Salinas-Montenegro’s proposed 

particular social group of “repatriated Mexican citizens perceived as American” 

1 The government contends that we lack jurisdiction because SalinasMontenegro’s petition is untimely, citing Bhaktibhai-Patel v. Garland, 32 F.4th 

180 (2d Cir. 2022). In Bhaktibhai-Patel, the Second Circuit relied on the 

Supreme Court’s decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and 

Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021), to hold that it lacked 

jurisdiction over a noncitizen’s petition for review of the BIA’s denial of 

withholding-only relief because 1) an order denying withholding of removal is 

not itself a final order of removal and 2) the noncitizen had waited too long to 

petition for review of his reinstated removal order. 32 F.4th at 189-93. But in 

Ortiz-Alfaro v. Holder, we held that a “reinstated removal order does not 

become final until the reasonable fear of persecution and withholding of 

removal proceedings are complete.” 694 F.3d 955, 958 (9th Cir. 2012). OrtizAlfaro is not clearly irreconcilable with Nasrallah and Johnson, see Miller v. 

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), so we remain bound by 

it. Because Salinas-Montenegro timely filed his petition for review within thirty 

days of the completion of his withholding-only proceedings, we have 

jurisdiction.
3 21-3

was not cognizable. “Whether a group constitutes a ‘particular social group’ 

under the INA is a question of law we review de novo.” Perdomo v. Holder, 

611 F.3d 662, 665 (9th Cir. 2010). Our precedent forecloses the recognition of 

Salinas-Montenegro’s proposed group. See Ramirez-Muñoz v. Lynch, 816 F.3d 

1226, 1228-29 (9th Cir. 2016) (rejecting particular social group of “imputed 

wealthy Americans”); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th 

Cir. 2010) (rejecting particular social group of “returning Mexicans from the 

United States”). Accordingly, Salinas-Montenegro's proposed particular social 

group cannot establish eligibility for withholding of removal.

2. Substantial evidence supports the BIA’s determination that SalinasMontenegro is also ineligible for CAT relief. While Salinas-Montenegro 

credibly testified about his assault by Mexican law enforcement in December 

1999, he presented no evidence that the Mexican authorities have harmed or 

threatened him in the intervening twenty-three years since the assault occurred, 

let alone evidence that Mexican authorities remain aware of him. Even 

assuming his past assault constitutes torture, Salinas-Montenegro has not 

established a particularized risk of future torture. Accordingly, the probability of 

future torture is too speculative on the record presented to compel the 

conclusion that Salinas-Montenegro is entitled to CAT relief. Lalayan v. 

Garland, 4 F.4th 822, 840 (9th Cir. 2021). 

PETITION DENIED.