Francisco Naranjo-Lucatero v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2022
• Docket: 18-73085
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO NARANJO-LUCATERO, No. 18-73085

Petitioner, Agency No. A079-166-635

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

Respondent.

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

Submitted March 10, 2022** Portland, Oregon

Before: GRABER, BEA, and M. SMITH, Circuit Judges.

Petitioner Francisco Naranjo-Lucatero seeks review of the Board of

Immigration Appeals’ (BIA) order denying his applications for asylum, withholding

of removal, and relief under the Convention Against Torture (CAT). Because the

parties are familiar with the facts, we do not recount them here, except as necessary

* 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). to provide context to our ruling. We review legal questions de novo and the agency’s

factual findings for substantial evidence. See Aden v. Wilkinson, 989 F.3d 1073,

1079 (9th Cir. 2021). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we

deny the petition for review.

Naranjo-Lucatero contends that the agency lacked jurisdiction over his

immigration case because the notice to appear did not include the time and date of

his removal hearing.1 This argument fails under our precedent because Naranjo-

Lucatero later received notice of the time and date of the hearing and attended. See

Karingithi v. Whitaker, 913 F.3d 1158, 1160–61 (9th Cir. 2019).

On the merits, substantial evidence supports the agency’s denial of asylum

and withholding of removal. An asylum applicant “must demonstrate that he has

suffered past persecution or has a well-founded fear of future persecution on account

of race, religion, nationality, membership in a particular social group, or political

opinion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (citing 8

U.S.C. § 1101(a)(42)). Naranjo-Lucatero does not allege any past persecution.

Rather, he fears future persecution from the Mexican mafia because he has lived in

the United States. The agency found that Naranjo-Lucatero’s proposed social group

1 Naranjo-Lucatero’s argument depends on Pereira v. Sessions, 138 S. Ct. 2105 (2018), which was decided after briefing to the BIA was complete. Although Naranjo-Lucatero did not present his jurisdictional argument to the agency, exhaustion is not required because no administrative remedy was previously available. See Alvarado v. Holder, 759 F.3d 1121, 1128–30 (9th Cir. 2014).

2 of Mexicans returning home from the United States was overly broad and could not

support an asylum application.2 Substantial evidence supports this determination.

See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29 (9th Cir. 2016); Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (per curiam). Because we

affirm the agency’s determination that Naranjo-Lucatero failed to establish

eligibility for asylum, we also affirm denial of the application for withholding of

removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Lastly, to be eligible for CAT relief, Naranjo-Lucatero must show he “will

more likely than not be tortured with the consent or acquiescence of a public official

if removed to [his] native country.” See Xochihua-Jaimes v. Barr, 962 F.3d 1175,

1183 (9th Cir. 2020). Although Naranjo-Lucatero may fear private actors in Mexico,

he offered only general evidence of violence and crime in Mexico. The agency

considered country conditions evidence and concluded it did not show that Naranjo-

Lucatero faced an individualized risk of torture. Substantial evidence supports the

agency’s finding. See Delgado-Ortiz, 600 F.3d at 1152.

PETITION FOR REVIEW DENIED.

2 The BIA did not err by declining to consider Naranjo-Lucatero’s proposed particular social group of “persons who are perceived as wealthy because of the amount of time they have spent in the U.S.,” because it was raised for the first time on appeal. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019).