Henry Molina-Contreras v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 7, 2021
• Docket: 18-73410
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JUL 7 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HENRY ROBERTO MOLINA- CONTRERAS-CONTRERAS, No. 18-73410 Petitioner, Agency No. A073-698-219 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 11, 2021 Submission Withdrawn March 24, 2021 Resubmitted July 7, 2021** Las Vegas, Nevada

Before: BENNETT and NGUYEN, Circuit Judges, and HARPOOL,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. Petitioner Henry Roberto Molina-Contreras-Contreras timely seeks review

of the Board of Immigration Appeals (“BIA”) dismissal of his appeal from an

immigration judge’s (“IJ”) denial of relief from removal. Applying the legal

standards applicable to membership in a protected group, see 8 U.S.C. §

1231(b)(3), and the Convention Against Torture (CAT), we deny the petition.

1. Substantial evidence supports the BIA’s determination that Molina-

Contreras-Contreras failed to establish a nexus between any harm and his

membership in a family social group. See Zetino v. Holder, 622 F.3d 1007, 1016

(9th Cir. 2010) (reviewing the agency’s factual findings under the deferential

“substantial evidence” standard). In order for Molina-Contreras to establish that he

is entitled to withholding of removal he must demonstrate that it is more likely

than not that he will be persecuted in Guatemala on account of a protected group. 8

U.S.C. § 1231(b)(3)(A); see Barajas-Romero v. Lynch, 846 F.3d 351, 356 (9th Cir.

2017). Molina-Contreras failed to establish that his alleged membership in a

particular social group will be a reason for his persecution. Id. at 357-59.

The BIA found that Molina-Contreras presented no testimony or evidence

that established gang members sought to harm him because of his status as a

family member, or any other statutorily protected reason. Rather, it appeared that

2 they sought to harm him because of his interference with their extortion activities.

Molina-Contreras’s argument that the BIA abused its discretion by failing to

analyze Molina-Contreras’s claim of membership in a protected group has no

merit, as the BIA and IJ both discussed this claim and found it did not meet the

withholding of removal requirements.

2. The BIA and the IJ applied the correct legal standards to Molina-

Contreras’s claim under the Convention Against Torture, and substantial evidence

supports the denial of that relief. See Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th

Cir. 2008) (holding that we review de novo claims of legal error); Riera-Riera v.

Lynch, 841 F.3d 1077, 1079 (9th Cir. 2016) (reviewing for substantial evidence the

denial of CAT relief). Molina-Contreras’s testimony that a policeman advised him

“you’d better leave because that’s a very dangerous gang,” coupled with the

Country Report identifying widespread corruption in Guatemala, does not establish

a likelihood of future torture in Guatemala with the acquiescence of the

government.

3. The agency had jurisdiction over the underlying removal proceedings.

While aliens have a right to fair procedures, they have no constitutional right to

force the government to re-adjudicate a final removal order by unlawfully

3 reentering the country. Morales-Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir.

2007). Molina-Contreras’s argument that a putative notice to appear that fails to

designate the specific time or place of the noncitizen’s removal proceedings is not

a valid notice to appear under Immigration and Nationality Act § 239(a), see

Pereira v. Sessions, 128 S. Ct. 2105, 2114 (2018), fails because the Ninth Circuit

held in Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019), that Pereira

did not apply to the jurisdiction of proceedings.

PETITION DENIED.