Jose Elias-Ruiz v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2021
• Docket: 19-70799
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ELIAS-RUIZ, No. 19-70799 19-70817 Petitioner, Agency No. A074-387-988 v.

ROBERT M. WILKINSON, Acting MEMORANDUM* Attorney General,

Respondent.

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

Submitted March 4, 2021** Pasadena, California

Before: TALLMAN and CALLAHAN, Circuit Judges, and CHRISTENSEN,*** District Judge.

Jose Elias-Ruiz (“Elias”), a native and citizen of Mexico, petitions for

review of two orders of the Board of Immigration Appeals (“BIA”) in this

* 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 Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. consolidated case. He petitions for review of the BIA’s order dismissing his

appeal from an immigration judge’s (“IJ”) denial of his motion to reopen his

exclusion proceedings. He also petitions for review of the BIA’s order dismissing

his appeal from an IJ’s decision denying his applications for withholding of

removal and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and deny in part the

petitions for review.

1. The BIA did not err in concluding that the IJ lacked jurisdiction over

Elias’s motion to reopen his underlying exclusion proceedings. “Although we

review the BIA’s denial of a motion to reopen for an abuse of discretion, purely

legal questions receive de novo review.” Padilla Cuenca v. Barr, 956 F.3d 1079,

1084 (9th Cir. 2020) (citation omitted). While 8 U.S.C. § 1229a(c)(7) “provides

that every alien ordered removed from the United States has a right to file one

motion to reopen his or her removal proceedings,” 8 U.S.C. § 1231(a)(5) “provides

that an alien forfeits that right by reentering the country illegally.” Id. at 1085

(citations omitted).

Elias argues that § 1231(a)(5) should not bar his application to reopen under

§ 1229a(c)(7) because § 1231(a)(5) does not bar applications to reopen based on a

lack of notice under § 1229a(b)(5)(c)(ii) and both subsections of § 1229 do not

impose time limits on filing. While Elias is correct that both subsections allow

2 filing at any time, applications to reopen based on a lack of notice under §

1229a(b)(5)(c)(ii) evade § 1231(a)(5)’s bar because of “potential due process

concerns.” Miller v. Sessions, 889 F.3d 998, 1002–03 (9th Cir. 2018). Those due

process concerns are not present here. Because Elias unlawfully reentered the

United States in 1997 despite his prior removal order, he “forfeit[ed] the right to

reopen under § 1229a(c)(7)” and is subject to “the less favorable legal regime”

under § 1231(a)(5). Padilla Cuenca, 956 F.3d at 1087–88. Accordingly, the BIA

correctly found that § 1231(a)(5) bars Elias from “reopen[ing] his prior removal

order under § 1229a(c)(7).” Id. at 1087.

2. Substantial evidence supports the BIA’s finding that Elias did not

establish a clear probability of persecution if he is returned to Mexico. “[O]ur

review ‘is limited to the BIA’s decision, except to the extent the IJ’s opinion is

expressly adopted.’” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)

(quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). Substantial

evidence supports the agency’s determination that Elias failed to establish that the

single incident, in which he was not physically harmed, rose to the level of

persecution. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088–89 (9th Cir.

2005) (finding persecution when a police officer physically harmed petitioner nine

times because of his particular social group).

3. Substantial evidence supports the BIA’s finding that Elias did not

3 establish a nexus between past or feared future persecution and any claimed

statutorily-protected ground. Elias argues that he was persecuted because he was a

returnee to Mexico who had lived in the United States. However, Elias failed to

show a nexus to his alleged social group as he did not provide any evidence that

the police officers knew or cared whether he was a returnee when they attempted

to extort him. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992); Barajas-

Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017). Substantial evidence also

supports the BIA’s conclusion that Elias did not establish a cognizable social group

of “returnees to Mexico who have lived in the United States.” See Delgado-Ortiz

v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (finding that “returning

Mexicans from the United States . . . is too broad to qualify as a cognizable social

group”). Substantial evidence supports the BIA’s finding that Elias “cannot

establish a nexus based on family membership simply because the family exists

and some family members have experienced harm.” See Ayala v. Holder, 640 F.3d

1095, 1097 (9th Cir. 2011). Substantial evidence also supports the BIA’s

conclusion that Elias did not establish persecution because of actual or imputed

political opinion against cartels. See Garcia-Milian v. Holder, 755 F.3d 1026,

1031–32 (9th Cir. 2014).

4. Substantial evidence supports the BIA’s denial of CAT relief. Elias

failed to show that it is more likely than not that he would be tortured by or with

4 the consent or acquiescence of the government if returned to Mexico. See

Delgado-Ortiz, 600 F.3d at 1152.

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN

PART.