Bernal-Gonzalez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2023
• Docket: 21-323
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED APR 20 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FERNANDO BERNAL-GONZALEZ, No. 21-323

Petitioner, Agency No. A206-262-975

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

Respondent.

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

Submitted April 18, 2023** San Francisco, California

Before: VANDYKE and SANCHEZ, Circuit Judges, and VRATIL,*** District Judge.

Petitioner Fernando Bernal-Gonzalez, a native and citizen of Mexico, applied

* 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 Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. for asylum, withholding of removal and protection under the Convention Against

Torture (“CAT”). An immigration judge (“IJ”) denied his applications, and the Board

of Immigration Appeals dismissed his appeal. Petitioner petitions for review of this

latter dismissal. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition

for review.

We review Board decisions denying asylum, withholding of removal and CAT

protection for substantial evidence. Yali Wang v. Sessions, 861 F.3d 1003, 1007

(9th Cir. 2017). The Board’s factual findings are conclusive unless the evidence

compels a contrary result. Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.

2006) (citation omitted).

1. Substantial evidence supports the Board’s determination that

petitioner is ineligible for asylum. The IJ determined that petitioner could

reasonably relocate within Mexico to avoid cartel violence. Petitioner did not

challenge this finding on review to the Board, so this Court lacks jurisdiction to

hear this argument. See Vargas v. U.S. Dep’t of Immigr. & Naturalization, 831

F.2d 906, 907–908 (9th Cir. 1987) (“Failure to raise an issue in an appeal to the

BIA constitutes a failure to exhaust remedies with respect to that question and

deprives this court of jurisdiction to hear the matter.”).

Further, substantial evidence supports the Board’s determination that

petitioner failed to show that future persecution will be inflicted on account of his

2 family membership. An asylum applicant must establish that he experienced or has

a well-founded fear that he will experience persecution on account of his race,

religion, nationality, political opinion or membership in a particular social group.

8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C. § 1101(a)(42). Here, petitioner did not

provide evidence that the cartel targeted his family because they were members of

that particular family; rather, he testified that the cartel was motivated by a desire

for money, which has no nexus to a protected ground. See Zetino v. Holder, 622

F.3d 1007, 1016 (9th Cir. 2010) (reasoning that a petitioner’s “desire to be free

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

members bears no nexus to protected ground”); see also Flores-Vega v. Barr, 932

F.3d 878, 887 (9th Cir. 2019) (explaining that a fear that individuals will be targeted

because of belief that they or their family have money is not sufficient to establish

connection to a protected statutory ground).

2. Substantial evidence also supports the Board’s decision to deny

petitioner’s application for withholding of removal. The Board affirmed the IJ’s

denial of petitioner’s application for withholding of removal, basing its affirmance

in part on petitioner’s failure to show that his family membership will be a reason

for any future persecution. Barajas-Romero v. Lynch, 846 F.3d 351, 358–60 (9th

Cir. 2017).

Petitioner has not satisfied the nexus requirement for withholding of

3 removal. Petitioner merely showed that generalized criminal violence has harmed

his family members to the same extent that it has harmed other Mexican citizens.

The Board correctly noted that criminal violence and general country conditions of

upheaval and unrest do not provide a nexus to a protected ground. See Zetino, 622

F.3d at 1016.

Further, because petitioner did not raise the issue on appeal to the Board, we

lack jurisdiction to review his argument that the Board erred in determining that he

could reasonably relocate within Mexico.

3. Substantial evidence supports the Board’s decision to deny petitioner’s

application for protection under CAT. Petitioner conceded that his risk of kidnapping

and torture is a risk that many Mexican citizens face and that his family is not

particularly targeted. Evidence of generalized violence is insufficient for petitioner

to establish eligibility for CAT protection. See Delgado-Ortiz v. Holder, 600 F.3d

1148, 1152 (9th Cir. 2010) (per curiam) (explaining that “generalized evidence of

violence and crime in Mexico” is insufficient to show petitioners more likely than

not will be tortured). Further, petitioner does not argue that any future torture will

occur with the consent or acquiescence of a public official.

4. We deny petitioner’s request to remand so that he may pursue an

application for cancellation of removal. See 8 C.F.R. § 1003.2(a) (a new application

can be pursued through a motion to reopen with the agency).

4 5. The motion for a stay of removal, Dkt. No. 2, is denied as moot. The

temporary stay of removal remains in effect until issuance of the mandate.

PETITION DENIED.