NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CESAR HUMBERTO PADILLA No. 19-72294 MOREIRA, Agency No. A216-627-309 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 8, 2020** Pasadena, California Before: PAEZ and BADE, Circuit Judges, and MELGREN,*** District Judge. Petitioner Cesar Humberto Padilla Moreira, a native and citizen of Honduras, entered the United States and applied for asylum, withholding 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 Eric F. Melgren, United States District Judge for the District of Kansas, sitting by designation. removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied all relief and entered an order of removal against Padilla. The Board of Immigration Appeals (BIA) affirmed the IJ’s denial. The BIA also rejected Padilla’s argument, raised in the alternative, that jurisdiction never vested with the immigration court. We review the BIA’s rulings of law de novo and its factual findings for substantial evidence. Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition. 1. To establish his eligibility for either asylum or withholding of removal, Padilla claimed he was threatened and persecuted on the basis of his membership in a particular social group. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i); 8 C.F.R. § 1208.16(b). To receive relief on this basis, an applicant must demonstrate that the proposed social 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.” Matter of M- E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also Rios v. Lynch, 807 F.3d 1123, 1127–28 (9th Cir. 2015). The IJ determined, and the BIA agreed, that Padilla’s proposed social group—“young Honduran males suffering from severe chronic mental illness or disability”—fails because Padilla did not demonstrate that Honduran society views 2 19-72294 his proposed group as socially distinct. Substantial evidence supports that determination. We lack jurisdiction to consider Padilla’s efforts to reframe “young” as a question of mental development rather than age because he failed to raise this argument before the BIA. 2. To be entitled to protection under CAT, Padilla must demonstrate a likelihood that upon his return to Honduras he will be tortured “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. §§ 1208.17(a), 1208.18(a)(1). “CAT relief is forward-looking”—proof of past torture is not enough to obtain relief unless there is sufficient evidence the applicant is more likely than not to be tortured again. Barajas-Romero v. Lynch, ...
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