NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 10 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO FONESCA-FLORES, AKA No. 20-70933 Fernando Fonseca-Flores, Agency No. A204-839-936 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 7, 2021** Pasadena, California

Before: GRABER, CALLAHAN, and FORREST, Circuit Judges.

Petitioner Fernando Fonesca-Flores, a citizen of Mexico, challenges the Board

of Immigration Appeals’ (BIA) order dismissing his appeal from the Immigration

Judge’s (IJ) denial of his applications for asylum, withholding of removal, and relief

* 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). under the Convention Against Torture (CAT). “We examine the BIA’s legal

conclusions de novo and its factual findings for substantial evidence.” Arrey v. Barr,

916 F.3d 1149, 1157 (9th Cir. 2019) (internal quotation marks and citation omitted).

The petition is dismissed in part and denied in part.

1. We lack jurisdiction to address Fonesca-Flores’s arguments that the

agency erred in concluding that his asylum application was time barred because the

BIA did not rely on this reason to dismiss his appeal. See Diaz-Reynoso v. Barr, 968

F.3d 1070, 1075 (9th Cir. 2020) (“Our review is limited to those grounds explicitly

relied upon by the [BIA].” (modification in original) (citation omitted)). We have

jurisdiction over the remaining issues under 8 U.S.C. § 1252.

2. The BIA did not err in affirming the IJ’s denial of asylum and

withholding of removal. The BIA correctly found that two of Fonesca-Flores’s

proposed social groups are not cognizable. We have previously rejected his first

proposed group—“pochos,” or Americanized Mexicans. See Ramirez-Munoz v.

Lynch, 816 F.3d 1226, 1228–29 (9th Cir. 2016); Delgado-Ortiz v. Holder, 600 F.3d

1148, 1151–52 (9th Cir. 2010) (per curiam). And while we have recognized that

testifying against gang members could be the basis for a cognizable social group,

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091–93 (9th Cir. 2013) (en banc),

Fonesca-Flores’s second proposed group—persons perceived to be snitches—is

distinguishable.

2 The group in Henriquez-Rivas were “those who had testified against M–18

gang members in open court, and thus, can accurately be described in a manner

sufficiently distinct that the group would be recognized, in the society in question,

as a discrete class of persons.” Id. at 1093 (internal quotation marks and citation

omitted). Here, Fonesca-Flores cooperated with law enforcement to testify about a

crime that occurred in the United States and did not involve known gang members.

The individuals he fears—gang members who were in detention with him—are not

the same people whom he testified against. Therefore, the group is not a discrete

class of persons as in Henriquez-Rivas.

Fonesca-Flores’s last social group—familial membership—is cognizable,

Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018), but substantial evidence

supports the BIA’s conclusion that his family members were not targeted because

of their familial relationship. Rather, his family suffered harm because of general

violence and criminals’ desire for pecuniary gain.

3. Finally, the BIA did not err in affirming the denial of relief under the

CAT. While the country conditions reports indicate that Mexico struggles with

controlling gang violence, substantial evidence supports the BIA’s finding that

Fonseca-Flores failed to demonstrate that it is more likely than not that the harm he

fears would be inflicted by a government actor or by someone that the government

3 is unable or unwilling to control. See 8 C.F.R. § 1208.18(a)(1); see also Garcia-

Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN

PART.

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