Arroyo-Telles v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2024
• Docket: 23-690
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS ARROYO-TELLES, No. 23-194 Agency No. Petitioner, A027-589-424 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

LUIS ARROYO-TELLES, No. 23-690 Agency No. Petitioner, A027-589-424 v.

MERRICK B. GARLAND, Attorney General,

On Petition for Review of an Order of the Immigration Court

Submitted April 2, 2024**

* 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). Phoenix, Arizona

Before: CLIFTON, BYBEE, and BADE, Circuit Judges.

Luis Arroyo-Tellez (Arroyo), a native and citizen of Mexico, petitions for

review of a reinstatement of a final order of removal issued by an Immigration

Judge (IJ), in which the IJ concurred with the negative reasonable fear

determination made by the Department of Homeland Security (in No. 23-194).

Arroyo also petitions for review of the IJ’s denial of a motion to reopen (in No. 23-

690). We review an IJ’s factual findings for substantial evidence, Andrade-Garcia

v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016), and questions of law and due process

de novo, Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We have

jurisdiction to review the IJ’s negative reasonable fear determination under 8

U.S.C. § 1252, and we deny the petitions.

1. Although Arroyo filed a petition for review of the IJ’s denial of his

motion to reopen, his opening brief failed to make any arguments challenging that

denial. Because he failed to contest this decision in his opening brief, this issue is

forfeited. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018) (“[A]rguments . . .

omitted from the opening brief are deemed forfeited.”).

2. Substantial evidence supports the IJ’s negative reasonable fear

determination. To avoid reinstatement of a removal order, an alien must show a

“reasonable fear of persecution or torture,” which requires “establish[ing] a

2 23-690 reasonable possibility that he or she would be persecuted on account of his or her

race, religion, nationality, membership in a particular social group or political

opinion, or a reasonable possibility that he or she would be tortured in the country

of removal.” 8 C.F.R. § 208.31(c).

Although Arroyo indicated that gangs had previously threatened him, and

expressed a fear that they might threaten him again in the future, substantial

evidence supports the IJ’s determination that Arroyo was not targeted on account

of a protected ground. See Bartolome v. Sessions, 904 F.3d 803, 814 (9th Cir.

2018) (holding that substantial evidence supported IJ’s denial of withholding of

removal when gangs targeted petitioner “because they perceived him to have

money,” not “based on a protected ground”). Arroyo alleges that he was targeted

because he was in the “particular social group [of Mexican nationals who are]

physically and culturally assimilated in American culture.” Even assuming this is

a cognizable particular social group, Arroyo has not demonstrated how he was

targeted, or would be targeted, on this basis, as opposed to being targeted by

criminals motivated by money. Because a mere desire to be free from a criminal’s

threats motivated by theft bears no nexus to a protected ground, the IJ’s

determination is supported by substantial evidence. See Zetino v. Holder, 622 F.3d

1007, 1016 (9th Cir. 2010).

3 23-690 Substantial evidence also supports the IJ’s finding that Arroyo failed to

establish a reasonable possibility of torture by or with the acquiescence of the

Mexican government. Some of the record supports that the Mexican government

has difficulty protecting its citizens from the cartels. But evidence that a

government “has been generally ineffective in preventing or investigating criminal

activities [alone does not] raise an inference that public officials are likely to

acquiesce in torture.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir.

2014). And, although Arroyo stated that friends told him that the police would not

get involved, his friends had no personal experience with the police. Arroyo also

never personally “had any problems with the police or any public official.”

Therefore, there is insufficient evidence to compel the conclusion that the police

acquiesced, or would acquiesce in the future, to gang members torturing Arroyo.

See id; Andrade-Garcia, 828 F.3d at 836.

PETITIONS DENIED.

4 23-690