NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 21 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

____________________________________ HECTOR LUNA-CABRIALES, No. 14-70388 AKA Hector C. Luna

Petitioner, Agency No. A090-811-142

v.

JEFFERSON B. SESSIONS III, MEMORANDUM*

Attorney General,

Respondent. ____________________________________

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

Submitted July 12, 2017** San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO, *** District Judge

Petitioner Hector Luna-Cabriales seeks review of his final order of removal

* 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 Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. issued by the Board of Immigration Appeals (“BIA”) on February 6, 2014, affirming

the immigration judge’s (“IJ”) decision ordering him removed to Mexico. We deny

the petition for review.

The BIA properly sustained the charge of removability even though service of

the conviction record was made several minutes after the IJ had already found him

removable. The regulations permit the IJ to extend the time limits for filing documents

and for service to be made on the record during the hearing. See 8 C.F.R. §§

1003.31(c), 1003.32(a). The record shows that actual service was accomplished on

the record in open court without objection from Petitioner’s counsel, thus curing

whatever defect may have existed due to the Government’s failure to provide

Petitioner with the documents at the time they were filed with the IJ. Because

Petitioner’s aggravated felony conviction for violating Penal Code Section 496d(a) is

a sufficient basis to affirm the BIA’s removal decision, we need not reach his

arguments concerning removability in connection with his alleged additional

convictions for violating California Health and Safety Code Section 11377(a).

The BIA was also supported by substantial evidence in its decision to deny

withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the

Convention Against Torture. To be entitled to withholding of removal based on a

claim of persecution, an alien must demonstrate (1) the existence of a cognizable

particular social group, (2) his membership in that particular social group, and (3) a 2 risk of persecution on account of his membership in the specified particular social

group. See Reyes v. Lynch, 842 F.3d 1125, 1143 n.3 (9th Cir. 2016).

While Petitioner submitted evidence documenting alleged governmental

acquiescence in the maltreatment of persons institutionalized in Mexican mental health

facilities, substantial evidence supported the IJ’s determination that he failed to meet

his burden of showing a nexus between his stated particular social group — mentally

impaired aliens forced to return to Mexico — and persecution on account of being a

member of that group. Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir.

2013) (per curiam) (“[A]n inadequate healthcare system is not persecution and is not

harm inflicted because of membership in a particular social group.”) Substantial

evidence supported findings that Petitioner (1) has never been diagnosed with or

treated for a mental impairment, (2) can speak Spanish, (3) can earn a living as an auto

mechanic, and (4) can live independently outside of an institution.

PETITION FOR REVIEW DENIED.

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