Jorge Millan-Rodriguez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 3, 2019
• Docket: 14-73589
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 3 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JORGE ANTONIO MILLAN- No. 14-73589 RODRIGUEZ, AKA Jorge Antonio Millan, 16-73411 AKA Jorge Millan, AKA Jorge Millan- 17-72591 Rodriguez, AKA Jorge A. Millan- Rodriguez, AKA Jorge Anton Millan- Rodriguez, Agency No. A073-906-847

Petitioner, MEMORANDUM* v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted May 14, 2019 Seattle, Washington

Before: HAWKINS, W. FLETCHER, and BENNETT, Circuit Judges.

In these consolidated petitions, Jorge Antonio Millan-Rodriguez, a native and

citizen of Mexico, seeks review of three orders of the Board of Immigration Appeals

(the “BIA”) dismissing his appeals from decisions denying his applications for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”) and two motions to reopen. We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petitions for review.

Reviewing the factual findings underlying the agency’s denial of asylum,

substantial evidence supports the agency’s determination that Millan-Rodriguez

failed to demonstrate a well-founded fear of persecution necessary to establish

eligibility for asylum. See Halim v. Holder, 590 F.3d 971, 976–77 (9th Cir. 2009).

Although Millan-Rodriguez presented evidence that three of his family members

have been killed in Mexico, the record as a whole does not compel a conclusion

contrary to that reached by the BIA regarding the objective reasonableness of his

fear. See id. at 977–78. As the BIA recognized, Millan-Rodriguez “has numerous

other relatives in Mexico who have not faced harm,” and “given that he did not know

any of the fundamental facts of [his family members’] apparent kidnappings and

killings, [he] did not establish that he was similarly situated and was at a similar

risk.” See id. at 799; Mgoian v. INS, 184 F.3d 1029, 1036 (1999) (analyzing whether

evidence of violence against family members had sufficient personal connection to

applicant to justify well-founded fear of persecution).

Because substantial evidence supports the denial of asylum, substantial

evidence necessarily supports the agency’s denial of withholding of removal as well.

See Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004) (applicant who fails to

2 14-73589 show well-founded fear of future persecution under asylum standard “necessarily

fails to satisfy the more stringent standard for withholding of removal”).

Substantial evidence also supports the agency’s denial of CAT relief on the

basis that Millan-Rodriguez failed to show it was more likely than not that a

government official in Mexico would torture him or consent or acquiesce to his

torture. See Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011).

We review for abuse of discretion the agency’s denial of a motion to reopen.

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150 (9th Cir. 2010). It was not an abuse

of discretion to deny as untimely Millan-Rodriguez’s motions to reopen his 2005

and 2014 removal proceedings. It is undisputed that the motions are untimely unless

the ninety-day filing deadline was equitably tolled. See Bonilla v. Lynch, 840 F.3d

575, 582 (9th Cir. 2016). Millan-Rodriguez filed the motion to reopen his 2005

removal proceedings in 2016 but failed to demonstrate that he made reasonable

efforts to pursue relief from at least 2005 to 2013 as required to equitably toll the

filing deadline. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). Millan-

Rodriguez filed the motion to reopen his 2014 proceedings in 2017 but failed to

demonstrate that he made any efforts to investigate the competence of his counsel’s

advice about the basis for his removal before 2016 despite being personally served

in 2013 with the Notice to Appear that identified the specific basis for removal.

Consequently, he did not establish the due diligence necessary for equitable tolling.

3 14-73589 See id. at 680 (no equitable tolling where petitioner failed to take affirmative steps

to investigate effectiveness of counsel).

The motion to transmit physical evidence (Case No. 14-73589, Docket Entry

Nos. 46, 58 and 60; Case No. 16-73411, Docket Entry Nos. 29, 41 and 43; Case No.

17-72591, Docket Entry Nos. 13 and 15) is denied as moot.

PETITIONS FOR REVIEW DENIED.

4 14-73589 FILED Jorge Millan-Rodriguez v. William Barr, No. 14-73589+ JUN 3 2019 W. FLETCHER, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I agree with my colleagues’ analysis of Millan-Rodriguez’s challenges to the

BIA’s denials of his motions to reopen. However, I disagree with my colleagues’

conclusion that the BIA’s denial of Millan-Rodriguez’s application for asylum was

supported by substantial evidence.

The only element of the asylum analysis properly before us is whether

Millan-Rodriguez reasonably fears harm that rises to the level of persecution upon

his return to Mexico. “Even a ten percent chance that the applicant will be

persecuted in the future is enough to establish a well-founded fear.” Ahmed v.

Keisler, 504 F.3d 1183, 1192 (9th Cir. 2007) (quoting Sael v. Ashcroft, 386 F.3d

922, 925 (9th Cir. 2004)). I would conclude that Millan-Rodriguez has carried his

burden through testimony found credible by the Immigration Judge and the BIA.

For that reason, I respectfully dissent.