Fernando Perez Lopez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 10, 2023
• Docket: 19-72533
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FERNANDO PEREZ LOPEZ, No. 19-72533

Petitioner, Agency No. A200-157-414

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

Respondent.

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

Submission deferred January 26, 2022 Submitted April 10, 2023** San Francisco, California

Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,*** District Judge.

Fernando Perez Lopez, a native and citizen of Mexico, petitions for review

* 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 Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. of a decision of the Board of Immigration Appeals dismissing his appeal of an

immigration judge’s denial of his applications for withholding of removal and

cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we deny

the petition.

1. Perez Lopez argues that his Notice to Appear did not confer

jurisdiction on the immigration court because it omitted the date, time, and place of

his hearing. Our precedent forecloses that argument. United States v. Bastide-

Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc) (holding that “the failure

of an NTA to include time and date information does not deprive the immigration

court of subject matter jurisdiction”).

2. Perez Lopez argues that the government failed to carry its burden to

establish alienage because the Form I-213 that it introduced was not authenticated

and therefore was inadmissible. We disagree.

“The Federal Rules of Evidence do not apply in removal proceedings.”

Hernandez v. Garland, 52 F.4th 757, 766 (9th Cir. 2022). But even if they did, the

proceedings in this case were consistent with the rules. Under Federal Rule of

Evidence 901, a public record is authenticated if a party presents evidence

sufficient to support a finding that the “purported public record or statement is

from the office where items of this kind are kept.” Fed. R. Evid. 901(a), (b)(7)(B);

see also United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir. 2014) (“[T]he

2 party offering the evidence must make a prima facie showing of authenticity ‘so

that a reasonable [factfinder] could find in favor of authenticity or identification.’”

(quoting United States v. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir. 1991))).

Meeting this requirement “does not require personal knowledge of a document’s

creation, but rather only personal knowledge that a document was part of an

official file,” and we have previously found a DHS agent’s testimony that

documents were “what [they were] claimed to be, namely, accurate copies of

documents [the DHS agent] personally knew were from [the petitioner]’s A-file” to

be sufficient for authentication. United States v. Estrada-Eliverio, 583 F.3d 669,

673 (9th Cir. 2009) (internal quotation marks omitted); see also United States v.

Lopez, 762 F.3d 852, 862–63 (9th Cir. 2014).

The government authenticated the Form I-213. Counsel for DHS represented

that the form came from Perez Lopez’s A-File; the immigration judge examined

the form and noted the “original signatures” on it; and the government made the

form available for Perez Lopez to inspect. Because a reasonable factfinder could

have determined that the “purported public record or statement is from the office

where items of this kind are kept,” the agency did not err in finding the Form I-213

authenticated and admissible. See Fed. R. Evid. 901(b)(7)(B). With no evidence

from Perez Lopez contradicting his concessions of alienage and information in the

form, the agency did not err in determining that the government established the

3 petitioner’s alienage. See Hernandez, 52 F.4th at 767–68.

3. Perez Lopez argues that he is entitled to withholding of removal

because, if removed, he will be persecuted by the Sinaloa Cartel on account of his

membership in the particular social group of his family. Even assuming that his

family is a cognizable particular social group, substantial evidence supports the

Board’s conclusion that his family membership would not be “a reason” for the

persecution he fears. Barajas-Romero v. Lynch, 846 F.3d 351, 358 (9th Cir. 2017).

Although two of his brothers experienced violence in Sinaloa, they testified that

this violence was the result of either confusion or random crime. They also

testified that other members of Perez Lopez’s family have lived in Sinaloa without

incident. In his own testimony, Perez Lopez did not show any nexus between his

membership in his family and the persecution he feared. He testified only to a

generalized fear of gangs and violence in Mexico, which is insufficient to show a

nexus to a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.

2010).

4. Finally, Perez Lopez argues that the agency erred in finding that he

failed to meet the continuous physical presence requirement for cancellation of

removal under 8 U.S.C. § 1229b(b)(1)(A). In Mendez-Garcia v. Lynch, we

explained that “[s]ection 1229b(b)(1)(A) expressly includes a time frame: it

requires the alien to establish that the alien ‘has been physically present in the

4 United States for a continuous period of not less than 10 years immediately

preceding the date’ of the application for cancellation of removal.” 840 F.3d 655,

663 (9th Cir. 2016). And a period is not continuous if at any point during it the

alien was outside the United States “in excess of 90 days.” 8 U.S.C. § 1229b(d)(2).

Perez Lopez failed to demonstrate continuous physical presence. In his

application, he conceded that he was voluntarily outside of the United States from

December 2009 to March 2010. While it is possible that this period, which spanned

four months, could have lasted fewer than 91 days, it was Perez Lopez’s burden to

prove that his departure was not “in excess of 90 days.” 8 U.S.C. § 1229b(d)(2);

see Mendez-Garcia, 840 F.3d at 663. Because he did not attempt to carry this

burden, his continuous presence accrual restarted in March 2010, well under 10

years before his May 2013 application. Perez Lopez’s arguments to the contrary

invoking the “stop-time” rules in 8 U.S.C. § 1229b(d)(1)(A) and (B) fail because

those rules are irrelevant to his application, and the agency did not rely on them in

its decision.

The motion for a stay of removal (Dkt. No. 5) is denied.

PETITION DENIED.