Cezar Moreira v. Eric Holder, Jr.

FILED

NOT FOR PUBLICATION AUG 15 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CEZAR JOSE MOREIRA, No. 09-70404

Petitioner, Agency No. A098-950-504

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted April 11, 2013 Pasadena, California

Before: REINHARDT and MURGUIA, Circuit Judges, and ZOUHARY, District Judge.**

Cezar Jose Moreira petitions for review of the BIA’s denial of his claim for

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, deny Moreira’s

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jack Zouhary, District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. petition with respect to his asylum and withholding claims, and grant Moreira’s

petition with respect to his CAT claim.

An…

MEMORANDUM **

Cezar Jose Moreira petitions for review of the BIA’s denial of his claim for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252 , deny Moreira’s petition with respect to his asylum and withholding claims, and grant Moreira’s petition with respect to his CAT claim.

An “immutable characteristic is a sine qua non for status as a member of a ‘particular social group.’ ” 1 Donchev v. Mukasey, 553 F.3d 1206, 1217 (9th Cir. 2009). Moreira’s purported social group of “middle class small business owners” does not satisfy that standard. Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th Cir.2005) (group of “business owners” did not share an “innate characteristic”); Dimitranov v. Ashcroft, 96 Fed.Appx. 514, 515 (9th Cir. 2004) (“[Bjeing a [small] business owner is not something so fundamental to Dimitranov’s identity or conscience that he cannot be expected to change it”); see also Matter of Acosta, 19 I. & N. Dec. 211, 234 (BIA 1985) (“[T]he internationally accepted concept of a refugee simply does not guarantee an individual a right to work in the job of his choice”), overruled on other grounds…

concurring in part and dissenting in part:

I agree that we should remand Moreira’s CAT claim. I would also, however, remand the asylum claim for reconsideration in light of Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir.2013) (en banc).