Ana Gonzalez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 11, 2020
• Docket: 17-71358
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANA MARIA GONZALEZ, Nos. 17-71358 17-73148 Petitioner, Agency No. A070-969-666 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted May 7, 2020**

Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges.

Ana Maria Gonzalez, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s (“IJ”) decision denying her application for asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), and

cancellation of removal (petition No. 17-71358), and the BIA’s order denying her

* 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). motion to reconsider its prior opinion and motion to reopen removal proceedings

based on ineffective assistance of counsel (petition No. 17-73148). Our

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,

Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that

deference is owed to the BIA’s interpretation of the 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. Garcia-Milian v. Holder,

755 F.3d 1026, 1031 (9th Cir. 2014). We review for abuse of discretion the denial

of a motion to reopen or reconsider. Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir.

2015). We deny the petition for review in No. 17-71358, and we deny in part and

dismiss in part the petition for review in No. 17-73148.

As to petition No. 17-71358, the agency did not err in concluding that, even

assuming that Gonzalez could establish past persecution, Gonzalez’s resignation

more than twenty years ago from the National Police before she left Guatemala

constituted a fundamental change in circumstances sufficient to rebut any well-

founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1)(i)(A); Gonzalez-

Hernandez v. Ashcroft, 336 F.3d 995, 997–99 (9th Cir. 2003). In addition,

substantial evidence supports the agency’s determination that Gonzalez failed to

establish that she was at risk of persecution because of her status as a former police

officer. Cf. Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir. 2000). Thus,

2 Gonzalez’s asylum claim fails. And, because she has failed to establish eligibility

for asylum, Gonzalez necessarily fails to establish eligibility for withholding of

removal. See id. at 1031.

Substantial evidence supports the agency’s denial of CAT relief because

Gonzalez failed to show that it is more likely than not she will be tortured by or

with the consent or acquiescence of the government if returned to Guatemala. See

Garcia-Milian, 755 F.3d at 1033–35. We reject Gonzalez’s contentions that the

agency failed to consider the evidence of the beating she suffered before resigning

from the National Police or otherwise erred in its legal analysis. See Najmabadi v.

Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency need not write an exegesis on

every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)

(petitioner did not overcome the presumption that the BIA reviewed the record).

As to petition No. 17-73148, the BIA did not abuse its discretion in finding

that Gonzalez failed to substantially comply with the threshold requirements for

establishing ineffective assistance of counsel set forth in Matter of Lozada, 19 I. &

N. Dec. 637 (BIA 1988). See Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004)

(explaining that, under ordinary circumstances, the BIA does not abuse its

discretion when it denies a motion to reopen based on alleged ineffective

assistance of counsel where the petitioner fails to meet the requirements of

Lozada). And although “we have not hesitated to address ineffective assistance of

3 counsel claims even when an alien fails to comply strictly with Lozada,” Ray v.

Gonzales, 439 F.3d 582, 588 (9th Cir. 2006), the record here does not “show[] a

clear and obvious case of ineffective assistance,” Rodriguez-Lariz v. INS, 282 F.3d

1218, 1227 (9th Cir. 2002).

To the extent that Gonzalez is challenging the BIA’s denial of her motion to

reconsider, the BIA did not abuse its discretion because her motion failed to

identify any error of fact or law in the prior order. See 8 C.F.R. § 1003.2(b)(1).

Gonzalez’s contention that the agency lacked jurisdiction because the initial

notice to appear omitted the date and time of her hearing is foreclosed by

Karingithi v. Whitaker, 913 F.3d 1158, 1160–62 (9th Cir. 2019).

Gonzalez fails to challenge, and therefore waives our review of, the BIA’s

denial of her request for administrative closure. See Lopez-Vasquez v. Holder, 706

F.3d 1072, 1079–80 (9th Cir. 2013) (issues not specifically raised and argued in a

party’s opening brief are waived).

We lack jurisdiction to consider Gonzalez’s contentions that the BIA had a

duty to review sua sponte the IJ’s denial of her request for cancellation of removal

or to advise her to apply for adjustment of status, as those contentions were not

raised to the agency. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004)

(court lacks jurisdiction to review claims not presented to the agency).

No. 17-71358: PETITION FOR REVIEW DENIED.

4 No. 17-73148: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.