Antonio Jimenez-Villanueva v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2023
• Docket: 20-73234
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTONIO JIMENEZ-VILLANUEVA, No. 20-73234

Petitioner, Agency No. A213-078-421

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 17, 2023** Pasadena, California

Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.

Antonio Jimenez-Villanueva, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of the

Immigration Judge’s (IJ) denial of his application for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT). We dismiss

* 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).

JS/Panel the petition as to asylum for lack of jurisdiction, and we deny the petition as to

withholding of removal and CAT relief.

1. We lack jurisdiction to review Jimenez-Villanueva’s asylum claim.

Jimenez-Villanueva argues that the BIA erred in affirming the IJ’s determination

that Jimenez-Villanueva had not established “extraordinary circumstances” to

excuse his failure to comply with the one-year filing deadline for asylum. See 8

U.S.C. § 1158(a)(2)(D). We have jurisdiction to review an extraordinary

circumstances determination only with regard to constitutional claims and

questions of law, including mixed questions of law and fact involving the

application of law to undisputed facts. Gasparyan v. Holder, 707 F.3d 1130, 1133–

34 (9th Cir. 2013). Here, Jimenez-Villanueva argues on appeal that his mental

health diagnosis resulted in his failure to file a timely application, but he has also

argued that his belated discovery of the asylum process caused his failure to file

within a year of arrival. The Government continues to argue that the latter was the

actual reason for Jimenez-Villanueva’s delay. Because the BIA’s extraordinary

circumstances determination does not rest upon undisputed facts, we lack

jurisdiction to review Jimenez-Villanueva’s asylum claim. Id. (dismissing a

petition challenging the BIA’s extraordinary circumstances determination for lack

of jurisdiction because the underlying facts were disputed).

2. Substantial evidence supports the BIA’s dismissal of Jimenez-

2 Villanueva’s appeal of the IJ’s denial of withholding of removal. Although

applicants for withholding of removal must meet a less demanding nexus standard

than for asylum, where, as here, “the BIA adopt[s] the IJ’s finding of no nexus”

between the harm and the alleged protected ground(s), the outcome is the same for

both forms of relief. Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019) (emphasis in

original). Even if we assume that Jimenez-Villanueva’s proposed social group of

“youth in Mexico, ages 12 to 20, who are forced to collaborate with the drug

cartels” is cognizable, Jimenez-Villanueva has long since aged out of that social

group. Further, even if we assume that Jimenez-Villanueva manifested an anti-

gang political opinion by refusing to join the Knights Templar, the record does not

compel the conclusion that it is more likely than not that Jimenez-Villanueva

would be persecuted by the Knights Templar on account of a protected ground, as

Jimenez-Villanueva’s own submitted evidence states that the gang no longer exists.

3. Finally, substantial evidence supports the BIA’s dismissal of Jimenez-

Villanueva’s appeal of the IJ’s denial of CAT relief. Jimenez-Villanueva argues

that members of the Knights Templar tortured him, and that “[a]t this time in

Mexico, one can hardly discern between the government and a criminal.” The

record does not compel the conclusion that Jimenez-Villanueva would more likely

than not be tortured with the government’s involvement or acquiescence if he

returned to Mexico, especially when his own evidence states that the gang no

3 longer exists. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010)

(“Petitioners’ generalized evidence of violence and crime in Mexico is not

particular to Petitioners and is insufficient to meet this standard.”).

DISMISSED IN PART AND DENIED IN PART.