Cardona-Perez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2023
• Docket: 21-412
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED MAR 20 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Efren Robert Cardona-Perez, No. 21-412

Petitioner, Agency No. A206-407-028

v. MEMORANDUM * Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted March 13, 2023 ** Pasadena, California

Before: LEE, BRESS, MENDOZA, Circuit Judges.

Petitioner Efren Robert Cardona-Perez, native and citizen of Guatemala,

petitions for review of a Board of Immigration Appeals (“BIA”) order

upholding an Immigration Judge’s (“IJ”) denial of Cardona-Perez’s application

for asylum, withholding of removal, cancellation of removal for non-permanent

residents, and Convention Against Torture (“CAT”) relief. We review de novo

the BIA’s determinations on questions of law and mixed questions of law and

* 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). fact. Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013). The BIA’s

factual findings are reviewed for substantial evidence. Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). To the extent that we

have jurisdiction, it is under 8 U.S.C. § 1252. We dismiss the petition in part

and deny the petition in part.

I.

The BIA did not err in denying Cardona-Perez’s asylum application for

being untimely. An asylum applicant must file for asylum within one year of

the applicant’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). “A late

asylum application may be entertained if the applicant shows ‘changed

circumstances which materially affect the applicant’s eligibility for asylum or

extraordinary circumstances relating to the delay in filing an application.’”

Gonzalez-Castillo v. Garland, 47 F.4th 971, 980 (9th Cir. 2022) (quoting 8

U.S.C. § 1158(a)(2)(D)).

Substantial evidence supports the BIA’s determination that changed

circumstances do not excuse Cardona-Perez’s fifteen-year delay in filing for

asylum. Although Cardona-Perez provided evidence of Guatemala’s

circumstances in 2016, Cardona-Perez failed to present any evidence of the

circumstances in Guatemala in 2002. Therefore, the evidence presented did not

show a change in circumstances between 2002, when Cardona-Perez arrived in

the United States, and 2017, when Cardona-Perez applied for asylum.

2 21-412 II.

“To secure withholding of removal, a petitioner must demonstrate that his

‘life . . . would be threatened in that country because of [his] race, religion,

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

Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (quoting 8 U.S.C.

§ 1231(b)(3)(A)). Substantial evidence supports the BIA’s finding that

Cardona-Perez failed to establish that his life would be threatened if he returned

to Guatemala. Cardona-Perez did not show past persecution in Guatemala and

failed to show how the Guatemalan gang’s “vague threats” amount to a “clear

probability of future persecution.” Tamang v. Holder, 598 F.3d 1083, 1094–95

(9th Cir. 2010); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)

(“[D]esire to be free from harassment by criminals motivated by theft or random

violence by gang members bears no nexus to a protected ground.”).

III.

With respect to Cardona-Perez’s application for cancellation of removal,

the BIA denied Cardona-Perez’s application on various grounds, including as a

matter of overall discretion. We lack jurisdiction to review the BIA’s

discretionary denial of cancellation of removal absent a colorable constitutional

or legal question. Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir.

2009). Here, Cardona-Perez raises no challenge to the BIA’s discretionary

denial of his application for cancellation of removal. See Friends of Yosemite

Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008) (“Arguments not

3 21-412 raised by a party in its opening brief are deemed waived.”). We thus lack

jurisdiction to consider Cardona-Perez’s challenge to that aspect of the BIA’s

decision. Because this is dispositive of Cardona-Perez’s application for

cancellation of removal, we need not reach the BIA’s alternative bases for its

denial of his application for cancellation of removal.

IV.

Substantial evidence supports the BIA’s denial of Cardona-Perez’s

request for CAT relief because Cardona-Perez’s reference to general

government corruption and violence failed to demonstrate “a particularized

threat of torture.” Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008)

(quotation omitted); see also Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th

Cir. 2006) (“Although the reports confirm that torture takes place in Yemen,

they do not compel the conclusion that Almaghzar would be tortured if

returned.”). Importantly, the record lacks any evidence showing that Cardona-

Perez would likely be tortured if he returned to Guatemala. See Lim v. INS, 224

F.3d 929, 936 (9th Cir. 2000) (“Threats themselves are sometimes hollow and,

while uniformly unpleasant, often do not effect significant actual suffering or

harm.”).

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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