Bernabe Andres Diego v. Pamela Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 2026
• Docket: 19-71226
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BERNABE ANDRES DIEGO, No. 19-71226

Petitioner, Agency No. A205-065-580 v.

PAMELA BONDI, Attorney General, MEMORANDUM*

Respondent.

BERNABE ANDRES DIEGO, No. 25-519 Agency No. Petitioner, A205-065-580 v.

PAMELA BONDI, Attorney General,

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

Submitted February 10, 2026** Pasadena, California

* 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). Before: SCHROEDER, WARDLAW, and BADE, Circuit Judges.

Bernabe Andres Diego (Andres), a native of Mexico and citizen of

Guatemala, seeks review of a decision of the Board of Immigration Appeals (BIA)

dismissing his appeal from an Immigration Judge’s (IJ) denial of his applications

for asylum, withholding of removal, and relief under the Convention Against

Torture (CAT). He also petitions for review of the BIA’s denial of his motion to

reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petitions.

1. Where, as here, “the BIA expressed agreement with the reasoning of

the IJ, this court reviews both the IJ and the BIA’s decisions.” Kumar v. Holder,

728 F.3d 993, 998 (9th Cir. 2013). We review the agency’s “legal conclusions de

novo, and its factual findings for substantial evidence.” Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). Under

the substantial evidence standard, we will reverse the agency “only on a finding

that the evidence not only supports a contrary conclusion, but compels it.”

Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020) (quoting Reyes v. Lynch,

842 F.3d 1125, 1137 (9th Cir. 2016)).

The agency properly denied Andres’ asylum application as untimely. See 8

U.S.C. § 1158(a)(2)(B) (explaining that an asylum applicant must file within one

year of arriving in the United States). Andres argues that his “fear of being sent

back to Guatemala or Mexico” and his “lack of knowledge of asylum rules”

2 25-519 constitute “extraordinary circumstances sufficient to excuse the one year bar.” As

Respondent contends, Andres did not raise these challenges to the BIA and thus

failed to exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1);

Suate-Orellana v. Garland, 101 F.4th 624, 629 (9th Cir. 2024) (holding that

although the administrative exhaustion requirement of 8 U.S.C. § 1252(d)(1) is not

jurisdictional, it is a mandatory claim-processing rule that a court must enforce if a

party raises the issue). Therefore, we cannot consider these arguments.

The agency appropriately declined to consider Andres’ claims of past

persecution and fears of future persecution in Guatemala because Andres failed to

present sufficient evidence of his Guatemalan citizenship. The Department of

Homeland Security requested removal to Mexico, and the IJ designated Mexico as

the country of removal. Because Andres has not been ordered removed to

Guatemala, his claims of persecution in Guatemala are not properly before the

court. See 8 C.F.R. §§ 1208.16(b), (c)(2); Su Hwa She v. Holder, 629 F.3d 958,

965 (9th Cir. 2010) (holding that “an applicant is not entitled to adjudication of an

application for withholding of removal to a country that nobody is trying to send

them to”), superseded by statute on other grounds as stated in Ming Dai v.

Sessions, 884 F.3d 858, 868 n.8 (9th Cir. 2018). For this same reason, we reject

Andres’ contention that the IJ abused its discretion and violated his due process

3 25-519 rights in denying a continuance to obtain proof of his Guatemalan citizenship.1 See

Zamorano v. Garland, 2 F.4th 1213, 1226 (9th Cir. 2021) (to establish a due

process action, the noncitizen must “demonstrate[] prejudice, which means that the

outcome of the proceeding may have been affected by the alleged violation”

(citation omitted)).

Substantial evidence supports the agency’s denial of withholding of

removal. Andres’ generalized fear of violence from the cartels in Mexico and his

testimony concerning his sister’s disappearance in Mexico are insufficient to show

past persecution or that he would be persecuted based on a protected ground. See

Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be

free from harassment by criminals motivated by theft or random violence by gang

members bears no nexus to a protected ground.”).

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

Andres failed to show it is “more likely than not that” he would be tortured by or

with the consent or acquiescence of the government if he returned to Mexico. 8

C.F.R. § 1208.16(c)(2).

2. We review the denial of a motion to reopen for abuse of discretion.

Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). “The BIA abuses its

1 We also deny Andres’ motion for judicial notice (No. 19-71226, Dkt. 22) as moot because evidence of his Guatemalan citizenship is immaterial to resolution of the petitions for review.

4 25-519 discretion when its decision is arbitrary, irrational, or contrary to law.” Id.

(quoting Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011)).

The BIA did not abuse its discretion in denying Andres’ motion to reopen

because he failed to establish prima facie eligibility for cancellation of removal.

The BIA properly found that Andres failed to submit any evidence that his three

U.S.-citizen children would experience exceptional and extremely unusual

hardship if he were removed to Mexico. See Martinez-Hernandez v. Holder, 778

F.3d 1086, 1089 (9th Cir. 2015) (explaining that the “exceptional and extremely

unusual hardship” standard “is not satisfied by the mere fact that the petitioner has

[qualifying relatives]; more is required”).

Contrary to Andres’ assertions, the BIA applied the correct legal standard

and did not engage in improper fact finding in denying the motion to reopen.2

Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1179 (9th Cir. 2023) (explaining that

where the BIA denies a motion to reopen for failing to establish prima facie

eligibility for relief, the controlling standard is whether there is a “reasonable

likelihood that the statutory requirements for relief have been satisfied”).

2 Because Andres’ failure to establish prima facie eligibility for cancellation of removal is dispositive, we decline to consider whether the BIA erred in denying the motion as untimely. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

5 25-519 PETITIONS DENIED.3

3 The temporary stay of removal remains in place until the mandate issues. The motions for a stay of removal (No. 25-519, Dkt. 3; No. 19-71226, Dkt. 1) are otherwise denied.

6 25-519