NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Odilio Escobar-Bamaca, No. 22-485 Agency No. Petitioner, A213-612-142 v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 21, 2023** Pasadena, California Before: WARDLAW and KOH, Circuit Judges, and McMAHON, District Judge.*** Odilio Escobar-Bamaca (“Escobar-Bamaca”), a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying * 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 Colleen McMahon, United States District Judge for the Southern District of New York, sitting by designation. his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), as well as the BIA’s order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. Substantial evidence supports the BIA’s determination that Escobar-Bamaca failed to demonstrate eligibility for asylum.1 An applicant “bears the burden of proving eligibility for asylum and must demonstrate that he has suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019); see also 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). Escobar- Bamaca alleges that he has suffered past persecution and has a well-founded fear of future persecution based on his membership in two proposed particular social groups: “Guatemalan men perceived to have COVID and returning to Guatemala” and “Guatemalan men who support the Venado political party.” The BIA correctly determined that the proposed particular social group of “Guatemalan men perceived to have COVID and returning to Guatemala” was 1 Although the IJ found that Escobar-Bamaca was ineligible for asylum because his application was time-barred, the BIA “assum[ed] arguendo that the respondent was not precluded from pursuing his asylum claim” and held that Escobar-Bamaca did not carry his burden of establishing eligibility for asylum. While Escobar-Bamaca continues to raise arguments regarding the timeliness of his asylum application, we need not reach the question because we affirm the BIA’s merits determination that Escobar-Bamaca is ineligible for asylum. 2 not cognizable under the Immigration and Nationality Act. As Escobar-Bamaca presumably no longer has COVID—and a significant percentage of the world’s population has now been infected with COVID—this proposed social group is not “(1) composed of members who share a common immutable characteristic, (2) defined with particularity,” or “(3) socially distinct within the society in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (BIA 2014). Assuming, as the BIA did, that “Guatemalan men who support …
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