Arnulfo Damian-Pascual v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2018
• Docket: 15-72812
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARNULFO DAMIAN-PASCUAL, aka No. 15-72812 Arnulfo Damian Pascual, Agency No. 206-548-073 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted June 7, 2018** Portland, Oregon

Before: GRABER and M. SMITH, Circuit Judges, and HELLERSTEIN,*** District Judge.

* 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 Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. Arnulfo Damian-Pascual, a citizen of Mexico, petitions for review of an

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

decision of an immigration judge (“IJ”) denying cancellation of removal, asylum,

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

Our jurisdiction is governed by 8 U.S.C. § 1252(a)(1). We review questions

of law de novo and the agency’s factual findings for substantial evidence. Zetino

v. Holder, 622 F.3d 1007, 1011−12 (9th Cir. 2010). When the BIA conducts its

own review of the evidence and law, “our review is limited to the BIA’s decision,

except to the extent that the IJ’s opinion is expressly adopted.” Antonyan v.

Holder, 642 F.3d 1250, 1254 (9th Cir. 2011). Here, the BIA conducted its own

review of the evidence and law; our review is therefore limited to the BIA’s

decision.

1. Petitioner challenges the denial of his application for cancellation of

removal on the ground that the BIA erred by finding that he failed to meet the

eligibility requirements of 8 U.S.C. § 1229b(b). But the BIA also denied relief in

the exercise of its discretion. We lack jurisdiction over that decision, 8 U.S.C.

§ 1252(a)(2)(B)(i), which is an independent, sufficient, and alternative ground for

the BIA’s denial of relief. Accordingly, we need not address Petitioner’s challenge

to the adverse eligibility finding. There is no legal support for Petitioner’s

arguments that the BIA cannot make an alternative, independent discretionary

2 decision if its motive is to insulate its conclusion from judicial review (assuming,

but not deciding, that the BIA had such a motive here) or that we must consider the

discretionary decision to be subsidiary.

2. As to the application for asylum, substantial evidence supports the BIA’s

finding that Petitioner’s 2015 application for asylum was untimely, received more

than a year after petitioner entered the United States (in 2000). See 8 U.S.C.

§ 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). “We may review the agency’s

application of the changed . . . circumstances exception to undisputed facts as it

relates to the one-year filing rule.” Vahora v. Holder, 641 F.3d 1038, 1042 (9th

Cir. 2011) (ellipsis in original) (internal quotation marks omitted). Petitioner

cannot argue that “changed circumstances” excused his delay, see Taslimi v.

Holder, 590 F.3d 981, 984 (9th Cir. 2010), as he was aware of violence and

vigilante activity in his hometown since at least 2012.

3. As to the application for withholding of removal, see 8 U.S.C.

§ 1231(b)(3)(A), Petitioner did not meaningfully challenge on appeal to the BIA

the IJ’s finding that he did not suffer from past persecution. Further, substantial

evidence supports the BIA’s finding that Petitioner’s proposed group—“male

residents of Urapicho”—does not meet the requirements for a particularized social

group to support Petitioner’s fear of future persecution. See 8 C.F.R. § 1208.13(b);

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091–93 (9th Cir. 2013) (en banc).

3 4. Finally, substantial evidence supports the BIA’s denial of CAT relief. To

prevail on such a claim, Petitioner had to show that it is more likely than not that

he will be tortured if he returns to Mexico. Lopez-Cardona v. Holder, 662 F.3d

1110, 1114 (9th Cir. 2011). Petitioner did not claim that he was tortured in the

past, nor did the BIA err in finding that he failed to establish that he is likely to be

tortured in the future by, or with the acquiescence of, the Mexican government.

Petition DISMISSED in part and DENIED in part.