NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

Heriberto Elmes-Mariano, No. 21-8

Petitioner, Agency No. A205-975-859

v.

MEMORANDUM*

Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted on April 19, 2023 ** Portland, Oregon

Before: RAWLINSON and SUNG, Circuit Judges, and MORRIS,*** District Judge.

Petitioner Heriberto Elmes-Mariano, a native of Mexico, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”), which

dismissed his appeal of an order of an Immigration Judge (“IJ”). In his petition,

* 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 Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. 1 Elmes-Mariano seeks review of only the denials of his applications for

cancellation of removal, withholding of removal, and protection under the

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

§ 1252 over the withholding and CAT claims, and we deny the petition. We

lack jurisdiction to review the claim regarding cancellation of removal, 8 U.S.C.

§ 1252(a)(2)(B)(i), and we dismiss the petition as to that claim.

1. The Immigration Judge (“IJ”) did not err by issuing a Notice to

Respondent, which notified Elmes-Mariano of his obligation to produce

documentation of his criminal history. Elmes-Mariano argues that, in substance,

the Notice was an improper demand for records related to his criminal history

under Rosas-Castaneda v. Holder, 655 F.3d 875 (9th Cir. 2011), overruled on

other grounds, Young v. Holder, 697 F.3d 976 (9th Cir. 2012).

The Immigration and Nationality Act (INA) requires applicants for relief

from removal to “comply with the applicable requirements to submit

information or documentation in support of the applicant’s application for relief

or protection as provided . . . in the instructions for the application form.”

8 U.S.C. § 1229a(c)(4)(B). The application that Elmes-Mariano completed

required him to “submit documentation” of his criminal history. See Dept. of

Justice, Executive Office for Immigration Review, Form EOIR–42B,

Application for Cancellation of Removal and Adjustment of Status for Certain

Nonpermanent Residents 5 (Rev. Jul. 2014). Elmes-Mariano does not dispute

that he failed to provide any documentation about his criminal history before his

2 individual hearing.1 The IJ did not act outside of their authority in issuing a

Notice to Elmes-Mariano notifying him that he had not yet “provided any

documentation . . . regarding his criminal history” and advising him “of the

need to submit evidence regarding the disposition of each citation, arrest and/or

conviction” as required.

Rosas-Castaneda does not apply in this case. In Rosas-Castaneda, an

applicant for relief from removal produced his record of conviction—a criminal

complaint and plea agreement. 655 F.3d at 883. The IJ requested the applicant

to produce a transcript of his plea hearing in state court, because the record of

conviction was inconclusive as to whether the applicant had necessarily been

convicted of a controlled substance offense. Id. We held that § 1229a(c)(4)(B)

does not authorize an IJ to order an applicant for relief from removal to produce

corroboration of non-testimonial evidence, and therefore the IJ’s order to

supplement the record of conviction with a transcript of the applicant’s state

court plea hearing was in error. Id. at 887. Here, the IJ’s Notice was not a

demand to supplement the record of conviction like that in Rosas-Castaneda.

And unlike the applicant in Rosas-Castaneda, Elmes-Mariano does not dispute

that he failed to produce any documentation related to his crimes.

2. Elmes-Mariano next challenges the BIA’s denial of his application

for cancellation of removal on the ground that he is statutorily ineligible

1 Elmes-Mariano later produced some evidence of some of his criminal history.

3 because he is not a person of good moral character. Elmes-Mariano contests the

IJ’s factual finding that he made false statements about his criminal and

immigration history with dishonest intent. See 8 U.S.C. § 1101(f)(6) (“No

person shall be regarded as . . . a person of good moral character who . . . g[ave]

false testimony for the purpose of obtaining any benefits under this chapter.”).

That finding is a factual determination that underlies a denial of discretionary

relief authorized by 8 U.S.C. § 1229b. Because 8 U.S.C. § 1252(a)(2)(B)(i)

“strips courts of jurisdiction to review ‘any judgment regarding the granting of

relief’” under the specified provisions, which include § 1229b, we lack

jurisdiction to review the contested factual determination. Patel v. Garland, 142

S. Ct. 1614, 1621, 1627 (2022) (interpreting § 1252(a)(2)(B)(i) as precluding

judicial review of facts found as part of discretionary-relief proceedings under

the specified provisions). We therefore dismiss the petition as to Elmes-

Mariano’s claim regarding cancellation of removal.

3. Elmes-Mariano next argues that the BIA erred in denying his

application for withholding of removal on the ground that his proposed social

group of “persons who are perceived as wealthy because of the amount of time

they have spent in the United States” was not cognizable. “Whether a group

constitutes a ‘particular social group’ under the INA is a question of law we

review de novo.” Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010). We

have previously rejected the social group that Elmes-Mariano proposes as not

cognizable under the INA. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229

4 (9th Cir. 2016) (rejecting social group of “imputed wealthy Americans”).

Elmes-Mariano argues that Ramirez-Munoz was wrongly decided, but we are

bound to follow it absent clearly irreconcilable intervening authority. Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). The BIA did not err in

rejecting Elmes-Mariano’s proposed social group.

4. Substantial evidence supports the BIA’s determination that Elmes-

Mariano is not eligible for CAT relief. To establish eligibility for CAT

protection, “an applicant must show ‘it is more likely than not that he or she

would be tortured if removed to the proposed country of removal.’” Plancarte

Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir. 2022) (quoting 8 C.F.R.

§ 1208.16(c)(2)). Elmes-Mariano does not point to any evidence in the record

specific to him; he relies only on general conditions of violence and the country

report for Mexico to establish a likelihood of torture. That evidence is not

sufficient to establish a particularized risk of torture to Elmes-Mariano. Lalayan

v. Garland, 4 F.4th 822, 840 (9th Cir. 2021).

PETITION DISMISSED IN PART, DENIED IN PART.

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