NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOEL RAMIREZ-CERVANTES, No. 20-70772
Petitioner, Agency No. A205-156-092
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted June 13, 2022** San Francisco, California
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
Petitioner Joel Ramirez-Cervantes is a citizen of Mexico. He petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his (1) motion to
remand and (2) application for various forms of immigration-related relief. We
deny the petition.
* 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). Ramirez-Cervantes most recently came to the United States unlawfully in
1994. He received a Notice to Appear from the Department of Homeland Security
in 2012, admitted the allegations contained therein, and conceded removability.
After receiving testimony and other evidence and deeming Ramirez-Cervantes
credible, the immigration judge denied Ramirez-Cervantes’ requests for asylum,
withholding or deferral of removal, protection under the Convention Against
Torture, and voluntary departure.
Ramirez-Cervantes appealed the immigration judge’s decision and filed two
motions: (1) a motion to terminate the proceedings that asserted that the
immigration court lacked jurisdiction under Pereira v. Sessions, 138 S. Ct. 2105
(2018), and (2) a motion to remand that asserted that his daughter had been born
following his immigration hearing, and thus he should be allowed to (a) introduce
new evidence regarding the hardship she would suffer if he were deported; and (b)
apply for cancellation of removal since she could serve as a qualifying relative.
The BIA adopted and affirmed the immigration judge’s decision and denied the
two motions. It also held that Ramirez-Cervantes had waived his claim for
protection under the Convention Against Torture.
Ramirez-Cervantes timely filed a petition for review in this court. He states
that the BIA erred in denying the motion to remand by (1) ignoring evidence
offered about his daughter’s mother’s mental health issues; (2) failing to analyze
2 the hardship his daughter would face if he were deported; (3) requiring that
Ramirez-Cervantes show that his daughter potentially had serious health issues or
compelling educational special needs to qualify for cancellation of removal; and
(4) failing to assess the cumulative hardship that would result from Ramirez-
Cervantes’ deportation. Ramirez-Cervantes also argues that the BIA erred in
assessing his requests for immigration relief by failing to characterize his
opposition to cartels and corrupt police as a political opinion and to recognize his
proffered particular social group. Ramirez-Cervantes does not challenge the denial
of his motion to terminate proceedings based on the Pereira jurisdictional
argument, nor the determination that he waived his claim under the Convention
Against Torture.
1. The Motion to Remand
We review the BIA’s denial of a motion to remand for abuse of discretion.
See Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). The BIA abuses its
discretion if its decision is “arbitrary, irrational, or contrary to law.” Lopez-Galarza
v. INS, 99 F.3d 954, 960 (9th Cir. 1996) (quoting Padilla-Agustin v. INS, 21 F.3d
970, 973 (9th Cir. 1994)). A movant must satisfy the “‘heavy burden’ of proving
that, if proceedings were reopened, the new evidence would likely change the
result in the case.” Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.
2008) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992)). The
3 relief Ramirez-Cervantes seeks here—cancellation of removal—requires a
showing of (1) ten years of continuous physical presence in the United States prior
to the application for cancellation of removal, (2) good moral character, (3) the
absence of disqualifying criminal convictions, and (4) exceptional and extremely
unusual hardship to a qualifying relative resulting from the removal. 8 U.S.C. §
1229b(b)(1); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 970 (9th Cir. 2003).
Here, the BIA did not abuse its discretion in holding that Ramirez-Cervantes
has not satisfied his burden as to this four-element standard. Regarding the fourth
element—that removal would result in exceptional and extremely unusual hardship
to a qualifying relative—while Ramirez-Cervantes’ partner and daughter likely
have a difficult life that will be made even more difficult if Ramirez-Cervantes is
removed, the BIA reasonably concluded that Ramirez-Cervantes had not shown
that this difficulty, though great, was exceptional. See In re Monreal-Aguinaga, 23
I. & N. Dec. 56, 62 (B.I.A. 2001) (“[T]he hardship . . . must be ‘substantially’
beyond the ordinary hardship that would be expected when a close family member
leaves this country.”); see also Garcia v. Holder, 621 F.3d 906, 913 (9th Cir. 2010)
(noting that the “‘exceptional and extremely unusual hardship’ standard is a very
demanding one” and concluding that the BIA did not abuse its discretion in
determining that the petitioners’ proffered evidence was insufficient to warrant
reopening). Because the failure to satisfy this element is dispositive as to this issue,
4 we do not address the other elements.
2. The Request for Asylum and Withholding of Removal
If the agency was not presented with an issue during administrative
proceedings, we lack jurisdiction to review the issue. See Tijani v. Holder, 628
F.3d 1071, 1080 (9th Cir. 2010); Vargas v. U.S. Dep’t of Immigr. &
Naturalization, 831 F.2d 906, 907–08 (9th Cir. 1987). If the agency was presented
with an issue and made factual findings, we review these findings for substantial
evidence. Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). Under this standard, we
may reverse the BIA only if the applicant shows that the evidence presented
compels the conclusion that the BIA’s decision was incorrect. Go v. Holder, 640
F.3d 1047, 1052 (9th Cir. 2011).
Ramirez-Cervantes argues that he had based his request for immigration
relief on a fear of persecution rooted in a political opinion and that the immigration
judge erred by failing to address this issue. But the record confirms that Ramirez-
Cervantes did not present to the agency a claim for relief based on a political
opinion.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOEL RAMIREZ-CERVANTES, No. 20-70772
Petitioner, Agency No. A205-156-092
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted June 13, 2022** San Francisco, California
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
Petitioner Joel Ramirez-Cervantes is a citizen of Mexico. He petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his (1) motion to
remand and (2) application for various forms of immigration-related relief. We
deny the petition.
* 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). Ramirez-Cervantes most recently came to the United States unlawfully in
1994. He received a Notice to Appear from the Department of Homeland Security
in 2012, admitted the allegations contained therein, and conceded removability.
After receiving testimony and other evidence and deeming Ramirez-Cervantes
credible, the immigration judge denied Ramirez-Cervantes’ requests for asylum,
withholding or deferral of removal, protection under the Convention Against
Torture, and voluntary departure.
Ramirez-Cervantes appealed the immigration judge’s decision and filed two
motions: (1) a motion to terminate the proceedings that asserted that the
immigration court lacked jurisdiction under Pereira v. Sessions, 138 S. Ct. 2105
(2018), and (2) a motion to remand that asserted that his daughter had been born
following his immigration hearing, and thus he should be allowed to (a) introduce
new evidence regarding the hardship she would suffer if he were deported; and (b)
apply for cancellation of removal since she could serve as a qualifying relative.
The BIA adopted and affirmed the immigration judge’s decision and denied the
two motions. It also held that Ramirez-Cervantes had waived his claim for
protection under the Convention Against Torture.
Ramirez-Cervantes timely filed a petition for review in this court. He states
that the BIA erred in denying the motion to remand by (1) ignoring evidence
offered about his daughter’s mother’s mental health issues; (2) failing to analyze
2 the hardship his daughter would face if he were deported; (3) requiring that
Ramirez-Cervantes show that his daughter potentially had serious health issues or
compelling educational special needs to qualify for cancellation of removal; and
(4) failing to assess the cumulative hardship that would result from Ramirez-
Cervantes’ deportation. Ramirez-Cervantes also argues that the BIA erred in
assessing his requests for immigration relief by failing to characterize his
opposition to cartels and corrupt police as a political opinion and to recognize his
proffered particular social group. Ramirez-Cervantes does not challenge the denial
of his motion to terminate proceedings based on the Pereira jurisdictional
argument, nor the determination that he waived his claim under the Convention
Against Torture.
1. The Motion to Remand
We review the BIA’s denial of a motion to remand for abuse of discretion.
See Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). The BIA abuses its
discretion if its decision is “arbitrary, irrational, or contrary to law.” Lopez-Galarza
v. INS, 99 F.3d 954, 960 (9th Cir. 1996) (quoting Padilla-Agustin v. INS, 21 F.3d
970, 973 (9th Cir. 1994)). A movant must satisfy the “‘heavy burden’ of proving
that, if proceedings were reopened, the new evidence would likely change the
result in the case.” Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.
2008) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992)). The
3 relief Ramirez-Cervantes seeks here—cancellation of removal—requires a
showing of (1) ten years of continuous physical presence in the United States prior
to the application for cancellation of removal, (2) good moral character, (3) the
absence of disqualifying criminal convictions, and (4) exceptional and extremely
unusual hardship to a qualifying relative resulting from the removal. 8 U.S.C. §
1229b(b)(1); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 970 (9th Cir. 2003).
Here, the BIA did not abuse its discretion in holding that Ramirez-Cervantes
has not satisfied his burden as to this four-element standard. Regarding the fourth
element—that removal would result in exceptional and extremely unusual hardship
to a qualifying relative—while Ramirez-Cervantes’ partner and daughter likely
have a difficult life that will be made even more difficult if Ramirez-Cervantes is
removed, the BIA reasonably concluded that Ramirez-Cervantes had not shown
that this difficulty, though great, was exceptional. See In re Monreal-Aguinaga, 23
I. & N. Dec. 56, 62 (B.I.A. 2001) (“[T]he hardship . . . must be ‘substantially’
beyond the ordinary hardship that would be expected when a close family member
leaves this country.”); see also Garcia v. Holder, 621 F.3d 906, 913 (9th Cir. 2010)
(noting that the “‘exceptional and extremely unusual hardship’ standard is a very
demanding one” and concluding that the BIA did not abuse its discretion in
determining that the petitioners’ proffered evidence was insufficient to warrant
reopening). Because the failure to satisfy this element is dispositive as to this issue,
4 we do not address the other elements.
2. The Request for Asylum and Withholding of Removal
If the agency was not presented with an issue during administrative
proceedings, we lack jurisdiction to review the issue. See Tijani v. Holder, 628
F.3d 1071, 1080 (9th Cir. 2010); Vargas v. U.S. Dep’t of Immigr. &
Naturalization, 831 F.2d 906, 907–08 (9th Cir. 1987). If the agency was presented
with an issue and made factual findings, we review these findings for substantial
evidence. Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). Under this standard, we
may reverse the BIA only if the applicant shows that the evidence presented
compels the conclusion that the BIA’s decision was incorrect. Go v. Holder, 640
F.3d 1047, 1052 (9th Cir. 2011).
Ramirez-Cervantes argues that he had based his request for immigration
relief on a fear of persecution rooted in a political opinion and that the immigration
judge erred by failing to address this issue. But the record confirms that Ramirez-
Cervantes did not present to the agency a claim for relief based on a political
opinion. Though he checked the political opinion box on his application for relief,
his testimony before the immigration judge made no reference to a political
opinion. His brief before the BIA likewise failed to raise a claim of persecution
based on political opinion. Because this issue was not exhausted before the agency,
we lack jurisdiction to consider it.
5 Ramirez-Cervantes also argues that he merits relief based on his fear that he
will be targeted in Mexico because of his membership in his family and his
perceived wealth after living in the United States. Specifically, Ramirez-Cervantes
testified about two violent incidents involving his cousins. But there is not any
evidence that these acts were based on the cousins’ family membership. Neither
Ramirez-Cervantes nor his family in Mexico have been threatened or harmed in
the decade since the two incidents, suggesting that family membership was not the
motivating reason. Substantial evidence thus supports the agency’s finding that his
cousins were not targeted based on their family membership, and Ramirez-
Cervantes’s brief in this court does not meaningfully challenge the agency’s
finding that his fear of harm in Mexico lacked a nexus to any of his proposed
social groups. The record does not contain direct or circumstantial evidence
compelling conclusions contrary to those reached by the BIA.
The petition is DENIED.