Jose Garcia-Cervantes v. William Barr

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS GARCIA-CERVANTES, AKA No. 17-71203 Jose Luis Cervantes, AKA Jose Luis Garcia, Agency No. A079-144-095 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 4, 2020** Honolulu, Hawaii

Before: FARRIS, McKEOWN, and BADE, Circuit Judges.

Jose Luis Garcia-Cervantes (“Garcia-Cervantes”) petitions for review of the

Board of Immigration Appeals (“BIA”) order dismissing his appeal from an

Immigration Judge’s (“IJ”) decision denying his requests for asylum, withholding

of removal, cancellation of removal, and protection under the Convention Against

* 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). Torture (“CAT”). We review the agency’s factual findings for substantial

evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.

1. An applicant must apply for asylum within one year of arriving in the

United States. 8 U.S.C. § 1158(a)(2)(B). A late application may be considered if

the asylum applicant establishes “either the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application.” Id. at § 1158(a)(2)(D).

We have jurisdiction to review the agency’s timeliness determination because the

ruling was based on undisputed facts. See Ramadan v. Gonzales, 479 F.3d 646,

649-50 (9th Cir. 2007).

Garcia-Cervantes entered the United States in 2002 but did not seek asylum

until 2014. Garcia-Cervantes’s asylum claim rests on his fear that, if he returned to

Mexico, he would be killed by members of a family who, since 1977, have

intimidated and murdered several of his relatives to take possession of Garcia-

Cervantes’s family’s ranch. Members of that family shot Garcia-Cervantes in

1998. Garcia-Cervantes contends that his circumstances changed in 2015 when

one of his brothers who lives near the family’s ranch was shot. We do not make a

changed circumstances determination. Substantial evidence supports the BIA’s

determination that Garcia-Cervantes’s delay in applying for asylum was not

2 reasonable because that incident was not a changed circumstance. Garcia-

Cervantes’s and his sister’s testimony about the motive and person responsible for

shooting their brother was speculative.

Garcia-Cervantes also asserts that extraordinary circumstances excuse his

untimely application because, during a prior removal proceeding, he was misled

about the need to apply for asylum. Garcia-Cervantes did not present this claim to

the BIA and therefore it is waived. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004). We therefore affirm the denial of Garcia-

Cervantes’s asylum application as untimely.

2. Substantial evidence supports the agency’s determination that Garcia-

Cervantes failed to establish that the harm he experienced or fear of future harm in

Mexico was or would be on account of a protected ground. See Ayala v. Holder,

640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam) (even if membership in a

particular social group is established, an applicant must still show that “persecution

was or will be on account of his membership in such group”); Zetino v. Holder,

622 F.3d 1007, 1016 (9th Cir. 2010) (“An [applicant’s] desire to be free from

harassment by criminals motivated by theft or random violence by gang members

bears no nexus to a protected ground.”). Substantial evidence also supports the

agency’s determination that Garcia-Cervantes could safely and reasonably relocate

within Mexico. See 8 C.F.R. §§ 1208.16(b)(1)(i)(A) and (B), (b)(3). Thus, Garcia-

3 Cervantes’s withholding of removal claim fails.

3. Substantial evidence supports the agency’s denial of CAT relief

because petitioner failed to show it is more likely than not that he would be tortured

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

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Andrade-Garcia v.

Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“general ineffectiveness on the

government’s part to investigate and prevent crime [does] not suffice to show

acquiescence”).

4. This court “lack[s] jurisdiction to review the merits of [the agency’s]

discretionary decision to deny cancellation of removal,” Vilchez v. Holder, 682 F.3d

1195, 1198 (9th Cir. 2012) (citation omitted), because Garcia-Cervantes has not

alleged “a colorable legal or constitutional claim,” Vilchiz-Soto v. Holder, 688 F.3d

642, 644 (9th Cir. 2012). See 8 U.S.C. § 1252(a)(2)(D). The agency considered the

hardship factors “in their totality.” See Matter of Recinas, 23 I. & N. Dec. 467, 472

(B.I.A. 2002).

5. This court lacks jurisdiction to consider Garcia-Cervantes’s Due

Process claim based on the IJ’s alleged bias because Garcia-Cervantes did not

exhaust that claim and the BIA could have remedied the alleged error. See Tall v.

Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008).

PETITION FOR REVIEW DENIED.