Francisco Hernandez-Gonzalez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2022
• Docket: 17-72619
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO HERNANDEZ-GONZALEZ, No. 17-72619 AKA Francisco Gonzalez Hernandez, AKA Fransico Gonzalez Hernandez, AKA Agency No. A098-569-229 Gonzalez Francisco Hernandez,

Petitioner, MEMORANDUM*

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 17, 2022** Pasadena, California

Before: BRESS and BUMATAY, Circuit Judges, and LASNIK,*** District Judge.

Francisco Hernandez-Gonzalez, a citizen of Mexico, seeks review of a Board

* 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 Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. of Immigration Appeals (BIA) decision denying Gonzalez’s motion to reopen

immigration proceedings on his 2015 removal order. “We review a BIA ruling on a

motion to reopen for an abuse of discretion, and will reverse the denial of a motion

to reopen only if the Board acted arbitrarily, irrationally, or contrary to law.”

Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (per curiam)

(citation omitted). We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition in part and dismiss in part.

1. “The BIA can deny a motion to reopen on any one of at least three

independent grounds—failure to establish a prima facie case for the relief sought,

failure to introduce previously unavailable, material evidence, and a determination

that even if these requirements were satisfied, the movant would not be entitled to

the discretionary relief which he sought.” Najmabadi v. Holder, 597 F.3d 983, 986

(9th Cir. 2010) (quotations omitted). In addition, “[t]o qualify for [withholding of

removal], the applicant must demonstrate that it is ‘more likely than not that he or

she would be persecuted on account of race, religion, nationality, membership in a

particular social group, or political opinion upon removal to [the country in

question].’” Silva v. Garland, 993 F.3d 705, 719 (9th Cir. 2021) (citing 8 C.F.R.

§ 1208.16(b)(2)).

The BIA did not abuse its discretion in concluding that Gonzalez’s motion did

not establish prima facie eligibility for withholding of removal based on Gonzalez’s

2 claimed political affiliation. First, the BIA reasonably discounted the allegations in

Gonzalez’s affidavit because the affidavit did not overcome the Immigration Judge

(IJ) and BIA’s past adverse credibility findings, which Gonzalez did not challenge.

See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (explaining that facts

presented in an affidavit supporting a motion to reopen need not be accepted if

“inherently unbelievable”).

Second, absent credible allegations specific to him, the BIA did not abuse its

discretion in concluding that Gonzalez’s evidence of generally adverse conditions in

Mexico was insufficient to entitle him to withholding of removal. See, e.g., 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.”).

2. Gonzalez argues that the IJ and BIA erred by failing to find an

exception to the one-year filing deadline for Gonzalez’s asylum application. He

further argues that the BIA erred in failing to address whether he is eligible for relief

under the Convention Against Torture (CAT). We lack jurisdiction to consider these

arguments because Gonzalez failed to exhaust these claims before the BIA. See,

e.g., United States v. De La Mora-Cobain, 18 F.4th 1141, 1146 (9th Cir. 2021)

(“Exhaustion of administrative remedies requires an alien to raise and appeal before

an agency the claims that the agency could consider to render relief against the

3 challenged order at issue.”). In his motion to reopen before the BIA, Gonzalez did

not argue that the untimeliness of his asylum claim should be excused, nor did he

mention his claim for CAT relief.

PETITION DENIED IN PART AND DISMISSED IN PART.