Jimenez-Santos v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2023
• Docket: 21-1286
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANSELMO JIMENEZ-SANTOS, No. 21-1286 Agency No. Petitioner, A201-173-679 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 22, 2023** Pasadena, California

Before: RAWLINSON and BRESS, Circuit Judges, and ZOUHARY,*** District Judge.

Anselmo Jimenez-Santos (Jimenez-Santos), a native and citizen of Mexico,

* 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 Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. petitions for review of a Board of Immigration Appeals (BIA) decision dismissing

his appeal of the denial of his application for Asylum, Withholding of Removal,

and protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252 and we deny the petition for review.

“We review the BIA’s factual findings underlying its determination that a

petitioner failed to establish eligibility for asylum, withholding of removal, and

protection under the CAT for substantial evidence.” Hussain v. Rosen, 985 F.3d

634, 641-42 (9th Cir. 2021) (citation omitted). “We reverse the BIA only where

any reasonable adjudicator would be compelled to conclude to the contrary. . . .”

Id. at 642 (citation and internal quotation marks omitted). We review denial of a

requested continuance for an abuse of discretion. See Arizmendi-Medina v.

Garland, 69 F.4th 1043, 1051 (9th Cir. 2023).

1. To the extent Petitioner challenges it in his petition for review, the

Immigration Judge (IJ) did not abuse his discretion in denying the continuance

requested by Jimenez-Santos on the day of the scheduled hearing. The basis of the

requested continuance was that Jimenez-Santos’s “case fell under Pereira v.

Sessions, 13 S. Ct. 2105 (2018).” However, as Jimenez-Santos offered no proper

basis to support his argument, the IJ acted within his discretion in denying the

motion. See Blanco v. Holder, 572 F.3d 780, 781 n.1 (9th Cir. 2009) (concluding

that “the BIA did not abuse its discretion in refusing to grant Petitioner a

2 21-1286 continuance” because the petitioner produced no evidence).

2. Jimenez-Santos’s ineffective assistance of counsel claim is unpersuasive.

Not only did he fail to comply with the requirements set forth in Matter of Lozada,

19 I&N 637 (BIA 1988), for raising such a claim, he has failed to establish

prejudice. See Hernandez-Ortiz, 32 F.4th 794, 801 (9th Cir. 2022) (recognizing

the requirements of compliance with Lozada and a showing of prejudice for claims

of ineffective assistance of counsel).

3. Substantial evidence supports the denial of withholding of removal.1 “A

petitioner is entitled to withholding of removal if he can establish a clear

probability that his life or freedom would be threatened upon return because of a

protected category.” Singh v. Garland, 57 F.4th 643, 658 (9th Cir. 2023), as

amended (citations and internal quotation marks omitted). Jimenez-Santos does

not point to any evidence in the record compelling the conclusion that his

membership in the particular social group of “Mexican citizens who have lived in

the United States for most of their adult life” would be “a reason” for any

persecution that he would face. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th

Cir. 2017).

1 Jimenez-Santos does not challenge in his opening brief the finding that his asylum application was untimely. See Diaz-Rodriguez v. Garland, 55 F.4th 697, 727 n.29 (9th Cir. 2022) (en banc) (deeming forfeited an issue that the petitioner failed to raise in his opening brief).

3 21-1286 4. Finally, substantial evidence supports the BIA’s denial of CAT relief. See

Hussain, 985 F.3d at 641-42. Jimenez-Santos’s argument that “authorities are

largely ineffective at controlling the criminal population” does not establish

government acquiescence. See Garcia-Milan v. Holder, 755 F.3d 1026, 1034-35

(9th Cir. 2014), as amended (noting that general ineffectiveness in preventing

criminal activities does not raise an inference of government acquiescence).

PETITION DENIED.

4 21-1286