Darvin Betancourt-Guzman v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 28, 2019
• Docket: 14-70190
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DARVIN ENRIQUE BETANCOURT- Nos. 14-70190 GUZMAN, 19-70166

Petitioner, Agency No. A095-755-831

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Darvin Enrique Betancourt-Guzman, a native and citizen of Guatemala,

petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

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

* 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). Against Torture (“CAT”) (No. 14-70190), and of the BIA’s order denying his

motion to reconsider (No. 19-70166). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review for substantial evidence the agency’s factual findings. Garcia-

Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We review for abuse of

discretion the BIA’s denial of a motion to reconsider. Mohammed v. Gonzales,

400 F.3d 785, 791 (9th Cir. 2005). In petition No. 14-70190, we dismiss in part

and deny in part the petition for review. In petition No. 19-70166, we deny the

petition for review.

As to petition No. 14-70190, we lack jurisdiction to consider Betancourt-

Guzman’s contention that his 2008 criminal conviction excuses the untimeliness of

his asylum application because, as noted by the BIA, he failed to raise it to the IJ.

See Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007) (issues not raised to

the IJ are not properly before the BIA on appeal); see also Santiago-Rodriguez v.

Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA,

we consider only the grounds relied upon by that agency.”) (citation and internal

quotation marks omitted).

The record does not compel the conclusion that Betancourt-Guzman

established changed circumstances to excuse his untimely asylum application. See

2 14-70190 8 C.F.R. § 1208.4(a)(4). Thus, Betancourt-Guzman’s asylum claim fails.

Substantial evidence supports the agency’s determination that Betancourt-

Guzman failed to establish a nexus between the harm he fears in Guatemala and a

protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An

[applicant’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.”). Thus,

Betancourt-Guzman’s withholding of removal claim fails.

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

Betancourt-Guzman failed to show it is more likely than not that he would be

tortured by or with the consent or acquiescence of the government. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Garcia-Milian, 755 F.3d at 1033-35

(concluding that petitioner did not establish the necessary state action for CAT

relief).

We reject Betancourt-Guzman’s contention that the agency failed to set forth

sufficient facts or analysis.

Betancourt-Guzman’s motion to terminate proceedings or remand (Docket

Entry No. 24 in No. 14-70190) is denied. See Karingithi v. Whitaker, 913 F.3d

1158, 1160-62 (9th Cir. 2019) (initial notice to appear need not include time and

3 14-70190 date information to vest jurisdiction in the immigration court).

As to petition No. 19-70166, the BIA did not abuse its discretion in denying

Betancourt-Guzman’s motion to reconsider where he failed to identify any error of

fact or law in the BIA’s prior order. See Ma v. Ashcroft, 361 F.3d 553, 558 (9th

Cir. 2004) (discussing the standard for a motion to reconsider); see also Karingithi,

913 F.3d at 1160-62; 8 C.F.R. § 1003.2(b)(1) (a motion to reconsider must specify

errors of fact or law in a prior decision).

Thus, the government’s motion for summary disposition (Docket Entry No.

8 in 19-70166) is granted because the questions raised by this petition for review

are so insubstantial as not to require further argument. See United States v.

Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (stating standard).

Betancourt-Guzman’s motion to proceed in forma pauperis (Docket Entry

No. 2 in 19-70166) is granted. The Clerk shall amend the docket to reflect this

status.

Betancourt-Guzman’s request for a stay of removal as set forth in his

petition for review (Docket Entry No. 1 in 19-70166) is denied as moot. The

temporary stay of removal shall terminate upon the issuance of the mandate.

No. 14-70190: PETITION FOR REVIEW DISMISSED in part;

4 14-70190 DENIED in part.

No. 19-70166: PETITION FOR REVIEW DENIED.

5 14-70190