NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 4 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JORGE BALDERAS-JARAMILLO, AKA No. 14-72661 Jaramillo Balderas, AKA Jorge Edwardo Balderas, Agency No. A205-319-390 Petitioner, v. JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Department of Homeland Security Submitted December 7, 2017** Pasadena, California Before: KELLY,*** CALLAHAN, and BEA, Circuit Judges. Petitioner Jorge Balderas-Jaramillo (“Petitioner”), a native and citizen 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 Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Mexico, petitions for review of an Immigration Judge’s (“IJ”) concurrence in a Department of Homeland Security (“DHS”) asylum officer’s determination he lacked a reasonable fear of persecution or torture in Mexico. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition. Petitioner claimed he feared that Mexican police or military would confuse him for a gang or cartel member, due to his tattoos, and therefore kidnap and torture him. The IJ found that Petitioner’s feared harm did not bear any nexus to a protected ground and that Petitioner did not state more than a speculative fear of torture by or with the acquiescence of government officials. We review this determination by the IJ for substantial evidence. Andrade–Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). Substantial evidence supports the IJ’s determination. First, Petitioner argues that his fear of persecution is based on a protected ground because his gang tattoos identify him as part of a particular “social group,” namely “former gang member[s].” But tattooed former gang members do not constitute a particular social group. Arteaga v. Mukasey, 511 F.3d 940, 945–46 (9th Cir. 2007) (“‘Tattooed gang member’ falls outside the Ninth Circuit’s definition of social group.”). Furthermore, Petitioner does not cite to any record evidence that the Mexican government would harm him based on any imputed political opinion, as opposed to imputed gang affiliation, which is not a protected ground. 2 14-72661 Second, Petitioner fails to point to any record evidence to show that he faces a “particularized threat of torture . . . beyond that of which all citizens of [the country of removal] are at risk,” Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th Cir. 2008), or to show a non-speculative possibility that he will be tortured with the involvement or acquiescence of the Mexican government, 8 C.F.R. § 1208.18(a)(1). Even assuming that this argument is not therefore waived, Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994), the submitted country materials mostly describe generalized strife and are, at best, ambiguous as to the significance of tattoos. It is the province of the agency to interpret ...
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