Jose Hernandez-Morales v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2019
• Docket: 15-72228
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 12 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE HERNANDEZ-MORALES, No. 15-72228

Petitioner, Agency No. A200-149-703

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted May 17, 2019 Seattle, Washington

Before: HAWKINS and W. FLETCHER, Circuit Judges, and BURY,** District Judge.

Jose Hernandez-Morales, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeal’s (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David C. Bury, United States District Judge for the District of Arizona, sitting by designation. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings, Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th

Cir. 2014), and we review de novo claims of due process violations in immigration

proceedings, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny

the petition for review.

The agency found that Hernandez-Morales’s asylum claim was time-barred

and that he did not qualify for an exception to the one-year deadline. See 8 U.S.C.

§ 1158(a)(2)(B), (D). During oral argument, Hernandez-Morales, through counsel,

conceded that his asylum application was time-barred and declined to challenge the

agency’s dispositive determination. Thus, Hernandez-Morales’s asylum claim

fails.

As to withholding of removal, Hernandez-Morales fears harm from drug

traffickers in Mexico based on his prior service in the Mexican Army and the anti-

drug trafficking work he conducted during that service. He advanced two

protected grounds as the basis for his withholding of removal claim: (1) the

proposed particular social group of “former military service members who worked

in the investigation of illegal drugs,” and (2) an imputed political opinion opposing

drug trafficking.

Contrary to Hernandez-Morales’s contention, the BIA did not violate his due

process rights by not addressing whether he established a well-founded fear of

2 persecution, because the BIA was not required to reach issues unnecessary to its

dispositive determination on his withholding of removal claim. See Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000) (requiring a showing of error to prevail on a

due process claim); see also Simeonov, 371 F.3d at 538 (courts and agencies are

not required to decide issues unnecessary to the results they reach).

Substantial evidence supports the agency’s determination that Hernandez-

Morales failed to establish that any harm he had experienced or would experience

in Mexico was or would be on account of a protected ground. The record shows

that during the time Hernandez-Morales lived in Mexico, and during his later visits

to Mexico from the United States, he never experienced personal contact, physical

harm, or threats from drug traffickers, and he was never the subject of any

recruitment efforts by a drug trafficking organization. Further, Hernandez-

Morales’s testimony made clear that his fellow service member, Pino, was a

current member of the military when killed by perpetrators that Hernandez-

Morales believed were drug traffickers, which distinguishes the harm Pino suffered

from that feared by Hernandez-Morales as a former member of the military.

Finally, the remaining record evidence, including a letter from Hernandez-

Morales’s wife and the 2011 State Department Country Report on Human Rights,

is insufficient to compel a contrary conclusion to the agency’s finding of no nexus

to a protected ground. See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)

3 (the agency’s factual findings are to be reversed only if the evidence compels the

contrary conclusion). Thus, Hernandez-Morales’s withholding of removal claim

fails. See Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014) (establishing nexus

between persecution and an imputed political opinion requires a showing that

persecutors believed the applicant held a political opinion and targeted him

because of it); Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (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”

(emphasis in original)); 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 denial of CAT relief because

Hernandez-Morales failed to show that 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 Garcia-Milian, 755 F.3d at 1033–35 (setting out the standard for

CAT relief and determining the record did not compel the conclusion that the

applicant established the state action component necessary to merit CAT relief).

Finally, Hernandez-Morales waived any challenge to the BIA’s denial of his

request to administratively close his case. See Ghahremani v. Gonzales, 498 F.3d

4 993, 997–98 (9th Cir. 2007) (issues not raised and argued in the opening brief are

deemed waived).

PETITION DENIED.