NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO BARAJAS NAVARRO, No. 18-70601

Petitioner, Agency No. A201-240-437

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 2, 2020** Seattle, Washington

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

Francisco Barajas Navarro, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from the Immigration Judge’s (“IJ”) order denying his applications for cancellation

of removal, asylum, withholding of removal, and protection under the Convention

* 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). Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252.

Reviewing the agency’s legal determinations de novo and its factual

determinations for substantial evidence, see Diaz-Jimenez v. Sessions, 902 F.3d

955, 958 (9th Cir. 2018), we dismiss the petition in part and deny it in part.

1. We deny Barajas’s challenge to the lack of time and date information in

his notice to appear because—regardless of the merits—the purported claim-

processing error was not timely raised. See United States v. Sadler, 480 F.3d 932,

940 (9th Cir. 2007) (“Absent a timely … invocation of … [a] claim-processing

rule, we are not obliged to enforce the rule.”). The “essential function” of a notice

to appear is to convey “time-and-place information to a noncitizen” and “facilitate

appearance at [the] proceedings.” Pereira v. Sessions, 138 S. Ct. 2105, 2115

(2018). Here, the agency eventually provided the information in a notice of

hearing, and Barajas fully participated in the proceedings by making an

appearance, offering evidence and testimony, and appealing to the BIA.

2. There was no discrepancy between the cases relied upon by the IJ and

the BIA in concluding that Barajas’s proposed social group was not cognizable and

in denying CAT protection. Both the IJ and BIA cited In re W-G-R-, 26 I. & N.

Dec. 208, 223 (B.I.A. 2014), and Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–

52 (9th Cir. 2010). To supplement the IJ’s analysis, the BIA additionally cited In

re A-M-E-, 24 I. & N. Dec. 69, 76 (B.I.A. 2007), which addressed the “perceived

2 as wealthy” aspect of Barajas’s proposed group rather than the “returnees” aspect

addressed by the other two cases. We thus deny the petition for review of

Barajas’s claim that the BIA’s decision was unreliable.

3. Barajas’s contention that the agency “depart[ed]” from its own legal

standards for evaluating hardship is not “a colorable legal or constitutional claim”

and we lack jurisdiction to review it. Vilchiz-Soto v. Holder, 688 F.3d 642, 644

(9th Cir. 2012); see 8 U.S.C. § 1252(a)(2)(B), (D). Barajas argues that the agency

did not examine “the totality of the factors set out in [BIA precedent]” and should

have considered “other circumstances,” and that “the impact on [his] child’s

education must be considered with particular weight.” But the agency’s alleged

“fail[ure] to properly weigh the equities and hardship” is not a colorable due

process claim. Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th Cir. 2006) (per

curiam). Therefore, we dismiss the petition for review of this claim.

4. We deny the petition for review of Barajas’s claim that the agency’s

decision to deny asylum and withholding of removal was “incomplete” and

therefore erroneous because the agency “did not make a finding as to whether

future persecution would occur.” The agency’s finding that Barajas failed to show

any nexus between the future persecution he fears and a protected ground was

sufficient to sustain its decision. See Henriquez-Rivas v. Holder, 707 F.3d 1081,

1089 (9th Cir. 2013) (en banc) (“[A] petitioner’s belief that she [will be]

3 persecuted does not alone prove persecution; rather, she must show persecution or

a well-founded fear of future persecution on account of a protected ground.”).

“[A]gencies are not required to make findings on issues the decision of which is

unnecessary to the results they reach.”1 INS v. Bagamasbad, 429 U.S. 24, 25

(1976).

5. The agency did not err in concluding that Barajas’s proposed social

group—“Mexican returnees who have lived in the United States for many years

and are perceived as wealthy”—is not cognizable. While “the size and breadth of a

group alone does not preclude a group from qualifying,” Perdomo v. Holder, 611

F.3d 662, 669 (9th Cir. 2010), the agency properly relied not only on the group’s

size but also on its diversity. See id. at 668 (recognizing “certain social groups as

too broad” where they lack a “unifying relationship or characteristic to narrow [an

otherwise] diverse and disconnected group” (emphasis omitted) (quoting Ochoa v.

Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005))); Delgado-Ortiz, 600 F.3d at

1151–52 (holding that “returning Mexicans from the United States” is not a

cognizable group because “this sweeping demographic division naturally

manifest[s] a plethora of different lifestyles, varying interests, diverse cultures, and

contrary political leanings”).

1 For similar reasons, we need not decide whether Barajas’s ignorance of the one-year deadline for asylum claims constituted “extraordinary circumstances relating to the [filing] delay.” 8 U.S.C. § 1158(a)(2)(D).

4 Nor did the agency “reject [the proposed] group solely because it had

previously found a similar group in a different society to lack social distinction or

particularity.” Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014). Rather,

the agency rejected the proposed group because Barajas “provided no evidence to

show that such a group is recognizable by Mexican society as socially distinct.”

We deny the petition for review of this claim.

6. We also deny the petition for review of Barajas’s claim that the BIA

failed to sufficiently explore the record for a cognizable social group or another

protected ground. It is the burden of Barajas, not the BIA, to define the protected

ground for which he was targeted, including the delineation of the particular social

group. See 8 C.F.R. § 208.13(b)(1) (requiring applicant to “establish that he or she

has suffered persecution in the past in the applicant’s country of nationality . . . on

account of race, religion, nationality, membership in a particular social group, or

political opinion”); see also Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir.

2016). Further, Barajas misconstrues the IJ’s decision. The IJ did not suggest

other grounds upon which Barajas could seek relief. Accordingly, the BIA was not

required to address any protected ground beyond the ones presented by Barajas.

7. Lastly, we deny the petition for review of Barajas’s claim that in

denying CAT protection the agency provided insufficient reasoning and analysis

“to allow proper appellate review.” The IJ found that Barajas “has not shown that

5 it is more likely than not . . . he will be tortured with the consent or acquiescence of

the Mexican government” other than with “generalized evidence” from country

conditions reports showing “mass violations of human rights.” The IJ explained

that Barajas needed evidence that was “closely tied to [him] or someone in [his]

specific circumstances.” This explanation was sufficient to facilitate judicial

review.

PETITION DISMISSED in part and DENIED in part.

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