                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                          FILED
                             FOR THE NINTH CIRCUIT
                                                                           SEP 10 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
DIEGO HERNANDEZ-MENDOZA,                        No. 12-73054

              Petitioner,                       Agency No. A075-093-421

 v.
                                                MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted September 4, 2015**
                                Seattle, Washington

Before: NOONAN, HAWKINS, and GOULD, Circuit Judges.

      Petitioner Diego Hernandez-Mendoza petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision upholding the immigration judge’s decision

finding him removable as charged and denying his application for asylum,



       *
             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).
withholding of removal, and protection under the Convention Against Torture

(“CAT”).

      The government met its burden to prove Petitioner was removable after his

conviction for two crimes of moral turpitude “not arising out of a single scheme of

criminal misconduct.” 8 U.S.C. § 1227(a)(2)(A)(ii). Although the thefts were eight

days apart (one at Walmart and the other at Fred Meyer), they were not crimes that

were planned at the same time and executed in accordance with such a plan, especially

in light of Petitioner’s own testimony that they were each spontaneous events in which

he became impatient waiting in line and left the stores without paying for the

merchandise. Cf. Leon Hernandez v. INS, 926 F.2d 902, 905 (9th Cir. 1991). We,

therefore, lack jurisdiction over this portion of his petition and dismiss it in part. 8

U.S.C. § 1252(a)(2)(C).

      Any due process violation that might arise from the immigration judge’s failure

to advise Petitioner of the right to appeal is harmless because Petitioner did file a

timely appeal, which the BIA adjudicated, and thus suffered no prejudice. See

Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994).

      The evidence does not compel the conclusion that Petitioner would be

persecuted or tortured upon return to Mexico because he is in a particular social group

of those returning after many years as permanent residents in the United States. This


                                           2
group lacks the sort of particularity or social visibility required for asylum. See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (holding that the

petitioner’s proposed social group, “returning Mexicans from the United States,” is

too broad to be a cognizable group); see also Henriquez-Rivas v. Holder, 707 F.3d

1081, 1087–91 (9th Cir. 2013) (en banc). His speculation that he would become a

target for gangs falls far short of the “more likely than not” standard required for CAT

protection. 8 C.F.R. § 1208.16(c)(2).

      PETITION DISMISSED IN PART, DENIED IN PART.




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