Angel Diaz-Mendoza v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 14, 2020
• Docket: 20-70023
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANGEL ANTONIO DIAZ-MENDOZA, No. 20-70023 AKA Chayo Mendoza, Agency No. A205-386-378 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 10, 2020** San Francisco, California

Before: TALLMAN, MURGUIA, and CHRISTEN, Circuit Judges.

Angel Diaz-Mendoza, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and

deny in part the petition for review.

1. Petitioner missed the filing deadline by seventeen years when he

raised his asylum claim in defense of removal. The BIA did not err in finding that

Petitioner failed to show “extraordinary circumstances” to justify his failure to file

for asylum within one year of his 2002 entry into the United States. See 8 U.S.C.

§ 1158(a)(2)(B), (D). Petitioner’s testimony that his brother misinformed and

dissuaded him from seeking asylum does not constitute an “extraordinary

circumstance.” See Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003)

(“As a general rule, ignorance of the law is no excuse . . . .”) (citation omitted).

Further, Petitioner’s argument that his application delay was attributable to

possible mental incompetency was rejected as unpersuasive by the BIA and thus

presents a disputed issue of fact which we do not have jurisdiction to review.

Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (“Where the underlying

facts are disputed, . . . we lack jurisdiction to review the Board’s extraordinary

circumstances determination.”) (citations omitted). Petitioner’s changed country

conditions argument was not raised before the BIA, is therefore unexhausted, and

for that reason is not within the scope of our review. Arrey v. Barr, 916 F.3d 1149,

1157 (9th Cir. 2019) (citation omitted).

2 2. The BIA did not abuse its discretion in determining that Petitioner

was ineligible for withholding of removal because his prior felony assault

conviction constituted a “particularly serious crime.” Our abuse of discretion

review of a “particularly serious crime” determination “is limited to ensuring that

the agency relied on the ‘appropriate factors’ and ‘[]proper evidence’ to reach this

conclusion.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)

(alteration in original) (citation omitted). “The applicable legal standard to

determine if a crime is particularly serious . . . requires the agency to ask whether

‘the nature of the conviction, the underlying facts and circumstances and the

sentence imposed justify the presumption that the convicted immigrant is a danger

to the community.’” Id. (citations omitted). Here, the BIA properly applied these

factors to Petitioner’s conviction. Petitioner asks us to reconsider the facts of his

conviction and reweigh the relevant factors, which we do not have jurisdiction to

do. Id. at 1077–78 (citation omitted).

3. Substantial evidence supports the BIA’s finding that Petitioner did not

meet his burden of showing more likely than not that he would be tortured if

returned to El Salvador. “Under the substantial evidence standard, the court

upholds the BIA’s determination unless the evidence in the record compels a

contrary conclusion.” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007)

(citation omitted). Petitioner’s argument that he last dressed as a woman in 2013

3 does not compel us to find that the BIA’s decision is incorrect. The BIA noted that

the last alleged act of persecution occurred more than twenty years ago when

Petitioner was nineteen years old and that he had safely relocated to another part of

the country. Substantial evidence thus supports the BIA’s conclusion that

Petitioner’s likelihood of facing future torture was too speculative to give rise to

CAT relief and the danger had lessened with the passage of time.

4. We lack jurisdiction to consider Petitioner’s competency argument

because he did not exhaust this issue before the BIA. Sola v. Holder, 720 F.3d

1134, 1135–36 (9th Cir. 2013). Petitioner’s remaining arguments supporting the

merits of his claims for relief from removal are not grounds on which the BIA

relied in rendering its decision, so they are not within our scope of review. Arrey,

916 F.3d at 1157.

PETITION FOR REVIEW DISMISSED in part AND DENIED in part.

Petitioner’s Motion for Stay of Removal (ECF No. 1) is DENIED AS MOOT.