                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            AUG 28 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ARNOLDO RAFEAL HERNANDEZ-                        No.   15-70711
RODRIGUEZ, AKA Arnoldo Hernandez-
Rodriguez,                                       Agency No. A095-807-155

              Petitioner,
                                                 MEMORANDUM*
 v.

WILLIAM P. BARR, Attorney General,

              Respondent.


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

                            Submitted August 7, 2019**

Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.

      Arnoldo Rafeal Hernandez-Rodriguez (“Hernandez-Rodriguez”), a native

and citizen of Guatemala, petitions for review of a Board of Immigration Appeals’

(“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision


      *
             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).
denying his application for withholding of removal under the Immigration and

Nationality Act (“INA”) and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition.

      Whether a group constitutes a “particular social group” is a question of law

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

we defer to the BIA’s interpretation of governing statutes and regulations,

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for

substantial evidence the agency’s factual findings. See Silva-Pereira v. Lynch, 827

F.3d 1176, 1184 (9th Cir. 2016).

      The BIA did not err in concluding there was no due process violation.

Hernandez-Rodriguez has not demonstrated that the proceedings before the IJ were

fundamentally unfair nor has he established that he suffered prejudiced. Colmenar

v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (must show fundamental unfairness

affecting the outcome of the proceeding).

      The BIA did not err in finding that Hernandez-Rodriguez has not established

membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,

1131 (9th Cir. 2016) (explaining cognizability standard) (citing Matter of M-E-G-

V-, 26 I & N Dec. 227, 237 (BIA 2014)). Hernandez-Rodriguez has not

established that Guatemalans who resist gang recruitment would be perceived by


                                            2
society or criminal gangs as a particular social group. See Santos-Barrios v.

Holder, 582 F.3d 849, 854-55 (9th Cir. 2009) (men in Guatemala resisting gang

violence is not a particular social group), abrogated in part by Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1093 (9th Cir. 2013). Hernandez-Rodriguez also has not

established that Guatemalans who have resided for many years in the United States

would be perceived by society or criminal gangs as a particular social group. See

Reyes, 842 F.3d at 1131 (explaining cognizability standard) (citing Matter of

M-E-G-V-, 26 I&N Dec. 227, 237 (BIA 2014)). Thus, Hernandez-Rodriguez’s

withholding of removal claim fails.

         Substantial evidence supports the agency’s denial of CAT relief. The record

does not compel the conclusion that Hernandez-Rodriguez is “more likely than

not” to be tortured by or with the consent or acquiescence of the government if he

returns to Guatemala. See 8 C.F.R. § 1208.16(c)(2); see also Aden v. Holder, 589

F.3d 1040, 1047 (9th Cir. 2009). Thus, Hernandez-Rodriguez’s CAT claim also

fails.

         PETITION FOR REVIEW DENIED.




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