Jesus Gutierrez Fernandez v. Merrick Garland, 17-71182

Petitioner Jesus Gutierrez Fernandez, a Mexican national, sought asylum, withholding of removal, and CAT protection; the BIA dismissed his appeal from an IJ’s denial and he petitioned the Ninth Circuit.
Fernandez asserted persecution based on family membership and imputed political opinion and also claimed membership in a returnee-based particular social group (returning Mexicans from the U.S.).
The record reflected criminal/gang harassment, threats, and theft-directed violence; the agency found this conduct lacked nexus to a protected ground.
The BIA concluded the proposed returnee-based social group was not cognizable for failing particularity and social distinction requirements.
The BIA also denied CAT relief, finding it speculative that the government would torture or acquiesce to torture if Fernandez returned.
The Ninth Circuit reviewed factual findings for substantial evidence and legal issues de novo where applicable, rejected Fernandez’s claims, and denied the petition (temporary stay of removal remained until mandate).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Nexus to protected ground (family membership/imputed political opinion)	Harm/harassment was because of family membership or imputed political opinion	Harassment was criminal/gang-motivated (theft/random violence), not on account of protected ground	Substantial evidence supports agency finding of no nexus; asylum/withholding denied
Cognizability of returnee-based particular social group	"Returning Mexicans from the U.S." is a protected social group	Proposed group lacks particularity and social distinction	Group not cognizable under M-E-V-G- framework; claim fails
Convention Against Torture (CAT)	More likely than not he would be tortured or the government would acquiesce if returned	Risk of torture is speculative; no government consent/acquiescence shown	Substantial evidence supports denial of CAT relief (likelihood speculative)
Due process in proceedings	Agency procedure violated his due process rights	No prejudicial error; presumption BIA reviewed the record correctly	Due process claims fail (no error or no prejudice shown)

Conde Quevedo v. Barr, 947 F.3d 1238 (9th Cir. 2020) (standards of review: substantial evidence for facts; de novo for social-group cognizability subject to BIA deference)
Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) (criminally motivated harassment for theft/random violence lacks nexus to protected ground)
Ayala v. Holder, 640 F.3d 1095 (9th Cir. 2011) (even if group established, must show persecution was on account of membership)
Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) (elements for particular social group: immutability, particularity, social distinction)
Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (returning Mexicans from the U.S. lacks particularity)
Zheng v. Holder, 644 F.3d 829 (9th Cir. 2011) (speculative possibility of torture insufficient for CAT)
Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (due process claim requires showing of error and prejudice)
Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006) (presumption that BIA reviewed the full record)