                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                         AUG 6 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

CESAR HUMBERTO PADILLA                          No.    19-72294
MOREIRA,
                                                Agency No. A216-627-309
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                               Submitted July 8, 2020**
                                 Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and MELGREN,*** District Judge.

      Petitioner Cesar Humberto Padilla Moreira, a native and citizen of

Honduras, entered the United States and applied for asylum, withholding of



      *
             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 Eric F. Melgren, United States District Judge for the
District of Kansas, sitting by designation.
removal, and protection under the Convention Against Torture (CAT). The

Immigration Judge (IJ) denied all relief and entered an order of removal against

Padilla. The Board of Immigration Appeals (BIA) affirmed the IJ’s denial. The

BIA also rejected Padilla’s argument, raised in the alternative, that jurisdiction

never vested with the immigration court. We review the BIA’s rulings of law de

novo and its factual findings for substantial evidence. Santiago-Rodriguez v.

Holder, 657 F.3d 820, 829 (9th Cir. 2011). Exercising jurisdiction under 8 U.S.C.

§ 1252, we deny the petition.

      1.     To establish his eligibility for either asylum or withholding of

removal, Padilla claimed he was threatened and persecuted on the basis of his

membership in a particular social group. See 8 U.S.C. §§ 1101(a)(42),

1158(b)(1)(B)(i); 8 C.F.R. § 1208.16(b). To receive relief on this basis, an

applicant must demonstrate that the proposed social group is: “(1) composed of

members who share a common immutable characteristic, (2) defined with

particularity, and (3) socially distinct within the society in question.” Matter of M-

E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also Rios v. Lynch, 807 F.3d

1123, 1127–28 (9th Cir. 2015).

      The IJ determined, and the BIA agreed, that Padilla’s proposed social

group—“young Honduran males suffering from severe chronic mental illness or

disability”—fails because Padilla did not demonstrate that Honduran society views


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his proposed group as socially distinct. Substantial evidence supports that

determination. We lack jurisdiction to consider Padilla’s efforts to reframe

“young” as a question of mental development rather than age because he failed to

raise this argument before the BIA.

      2.     To be entitled to protection under CAT, Padilla must demonstrate a

likelihood that upon his return to Honduras he will be tortured “by or at the

instigation of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” 8 C.F.R. §§ 1208.17(a), 1208.18(a)(1).

“CAT relief is forward-looking”—proof of past torture is not enough to obtain

relief unless there is sufficient evidence the applicant is more likely than not to be

tortured again. Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017).

“Acquiescence of a public official requires that the public official, prior to the

activity constituting torture, have awareness of such activity and thereafter breach

his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R.

§ 1208.18(a)(7).

      Although the IJ found that Honduran gangs committed acts of violence

against Padilla that “arguably rises to the level of torture,” the IJ found no evidence

that the Honduran government committed, instigated, consented to, or acquiesced

in any of Padilla’s mistreatment. The IJ further determined that Padilla failed to

show an individualized risk of future torture by gangs beyond the risk posed to all


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Honduran citizens. The BIA affirmed the IJ’s ruling.

      Substantial evidence supports the BIA’s denial of CAT protection. Padilla,

due to memory loss issues, did not testify at his removal hearing. His only

witness—a family friend—testified that she was unaware how the police

responded when Padilla’s family reported that gangs had threatened and committed

acts of violence against Padilla. No evidence showed that the Honduran

government acquiesced in or consented to Padilla being tortured by gangs.

      Moreover, substantial evidence supported the BIA’s determination that

Padilla failed to demonstrate an individualized risk of torture upon returning to his

home country. Padilla provided evidence indicating that gang violence is a

widespread problem in Honduras. But a generalized risk of gang violence that

applies to all Honduran citizens is insufficient to show that Padilla faces an

individualized risk of torture if he returns to Honduras. Dhital v. Mukasey, 532

F.3d 1044, 1051–52 (9th Cir. 2008); Almaghzar v. Gonzales, 457 F.3d 915, 923

(9th Cir. 2006).

      3.     Padilla argues, in the alternative, that jurisdiction never vested with

the immigration court because the Notice to Appear served on him omitted the

time, date, and location of the removal hearing, even though the immigration court

later provided that information to Padilla and his attorney in a Notice of Hearing.

Padilla’s argument is foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1158,


                                          4                                      19-72294
1162 (9th Cir. 2019) and Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir.

2020).

      Padilla’s motion for stay of removal is denied as moot.

      PETITION FOR REVIEW DENIED.




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