Guerrero Elizondo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 10, 2024
• Docket: 23-243
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAR IVAN GUERRERO ELIZONDO, No. 23-243 Agency No. Petitioner, A205-053-756 v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 5, 2024** Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES, District Judge.***

Cesar Ivan Guerrero Elizondo, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (BIA) final order of removal, which

* 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 Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. affirmed without opinion the Immigration Judge’s (IJ) denial of Guerrero

Elizondo’s applications for asylum, withholding of removal, and protection under

the Convention Against Torture (CAT). Because the parties are familiar with the

facts, we do not recount them here except as necessary for context. “Where, as

here, the BIA affirms the decision of the IJ without opinion, we review the IJ’s

decision as the final agency decision.” Donchev v. Mukasey, 553 F.3d 1206, 1212

(9th Cir. 2009). We have jurisdiction under 8 U.S.C. § 1252(a)(1) and (a)(2)(D),

and we deny the petition.

1. Even assuming Guerrero Elizondo could overcome the IJ’s adverse

credibility finding, the untimeliness of his asylum application, and the lack of

nexus determination, his asylum and withholding of removal claims fail because

the IJ determined that he could reasonably relocate to another part of Mexico, and

Guerrero Elizondo has not challenged that determination. See Akosung v. Barr,

970 F.3d 1095, 1101 (9th Cir. 2020) (explaining that asylum and withholding of

removal are unavailable if the applicant could avoid persecution by relocating

within the country and it would be reasonable to expect the applicant to do so).

Even if he had challenged that determination, it is supported by substantial

evidence.

2. Substantial evidence also supports the IJ’s finding that Guerrero Elizondo

did not establish for purposes of his CAT claim that it is more likely than not that

2 23-243 he would be subject to torture with the consent, acquiescence, or willful blindness

of the Mexican government if removed to Mexico. See Delgado-Ortiz v. Holder,

600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (“[G]eneralized evidence of

violence and crime in Mexico is . . . insufficient to meet [the CAT] standard.”); 8

C.F.R. § 1208.16(c)(3). Guerrero Elizondo points to no evidence in the record

compelling a contrary conclusion.

3. Guerrero Elizondo contends the IJ violated his procedural due process by

failing to provide meaningful reasoning and application of facts to the law,

diminishing his testimony, skewing the facts of the case, and mischaracterizing the

record. We disagree. See Getachew v. INS, 25 F.3d 841, 845 (9th Cir. 1994)

(holding that due process challenges in deportation proceedings require showing of

error and prejudice). Guerrero Elizondo received a meaningful opportunity to be

heard, and the IJ provided extensive reasoning in deciding the case. See Zetino v.

Holder, 622 F.3d 1007, 1014 (9th Cir. 2010) (holding that there was no due process

violation because proceedings were not so fundamentally unfair that petitioner was

prevented from reasonably presenting his case). Guerrero Elizondo also does not

make a clear showing of prejudice. Even if the IJ had given his testimony full

credence, substantial evidence supports that Guerrero Elizondo does not qualify for

asylum relief, mandatory withholding of removal, or protection under the CAT.

See Jacinto v. INS, 208 F.3d 725, 728 (9th Cir. 2000) (holding that to prevail on

3 23-243 due process challenge, petitioner must show that violation of his rights likely

would have impacted the outcome of the removal proceeding).

PETITION DENIED.

4 23-243