Jose Hernandez Rodriguez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2022
• Docket: 20-70021
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ALFREDO HERNANDEZ No. 20-70021 RODRIGUEZ, Agency No. A200-906-717 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Immigration Judge

Argued and Submitted August 10, 2022 Anchorage, Alaska

Before: S.R. THOMAS, McKEOWN, and CLIFTON, Circuit Judges.

Jose Alfredo Hernandez Rodriguez (“Hernandez”), a native of Mexico, seeks

review of a decision of the Immigration Judge (“IJ”) denying Hernandez’s request

for a continuance to obtain counsel and affirming the asylum officer’s determination

that Hernandez failed to establish a reasonable fear of torture. We review the former

issue de novo and the latter issue for substantial evidence. Orozco-Lopez v. Garland,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 11 F.4th 764, 774 (9th Cir. 2021) (continuance); Lalayan v. Garland, 4 F.4th 822,

840 (9th Cir. 2021) (reasonable fear). We have jurisdiction pursuant to 8 U.S.C.

§ 1252, and we deny the petition.

1. The IJ did not violate Hernandez’s statutory right to counsel in his

reasonable fear review proceeding by denying his request for a continuance to obtain

counsel. Hernandez has a statutory right to counsel. Orozco-Lopez, 11 F.4th at 777

(holding that non-citizens whose removal orders have been reinstated are statutorily

entitled to counsel under 8 U.S.C. § 1362 at their reasonable fear hearings before an

IJ). However, this statutory right to counsel is cabined by 8 C.F.R. § 208.31(g)’s

requirement that in the absence of exceptional circumstances, the reasonable fear

review hearing shall be conducted by the IJ within ten days of the filing of the Notice

of Referral to the IJ. Orozco-Lopez, 11 F.4th at 777. This does not require a non-

citizen to have counsel before an IJ can proceed, but only that a non-citizen “must at

least be informed of the entitlement to counsel and have an opportunity to seek

counsel within § 208.31(g)(1)’s constraints.” Id. at 778–79.

Hernandez argues he was denied his statutory right to counsel when he was

denied a one-day continuance to retain counsel within the ten-day period set out in

8 C.F.R. § 208.31(g). We conclude that Hernandez was given “reasonable time to

locate counsel,” Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019) (citations

omitted), and that Hernandez did not show good cause for a continuance. Hernandez

2 was advised of his right to counsel in advance of the hearing, secured counsel for a

bail hearing the same day without providing an explanation for why he was unable

to obtain an attorney for his reasonable fear hearing, and failed to explain how a

continuance would allow him to return with counsel within the ten-day period. He

had at least a week to secure counsel for this hearing and did not demonstrate diligent

efforts to secure an attorney. See United States v. Moriel-Luna, 585 F.3d 1191,

1201–02 (9th Cir. 2009) (holding IJ did not abuse his discretion by concluding that

one week was a reasonable amount of time for petitioner to find counsel because

petitioner was informed of his right to counsel and did not indicate he had tried to

find an attorney).

2. We conclude that substantial evidence supported the IJ’s finding that

Hernandez failed to establish eligibility for Convention Against Torture (“CAT”)

protection based on the asylum officer’s finding that he failed to show a reasonable

fear of torture if removed to Mexico. See Lalayan, 4 F.4th at 840 (“We review for

substantial evidence the [IJ]’s determination that [the applicant] is not eligible for

protection under CAT.” (citation omitted)). Protection under the CAT requires two

elements: “first, is it more likely than not that the alien will be tortured upon return

to his homeland; and second, is there sufficient state action involved in that

torture.” Benedicto v. Garland, 12 F.4th 1049, 1063 (9th Cir. 2021) (citations and

quotation marks omitted); see 8 C.F.R. § 1208.16(c)(2). Even though Hernandez

3 claims he was almost mugged, he witnessed a shootout, and his father was extorted

and on one occasion threatened, Hernandez was never physically harmed or

directly threatened in Mexico. He based his fear of being targeted and tortured by

unknown gang members on a generalized fear of violence and crime in Mexico.

See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (holding that

general violence and crime is insufficient to establish that it is “more likely than

not” petitioners would be tortured). Further, Hernandez has not shown any reason

to believe that Mexican authorities would seek to torture him or acquiesce to his

torture, as neither he nor his family have had any trouble with Mexican authorities

other than witnessing their solicitation of bribes, and he testified that he does not

fear harm from Mexican authorities. See 8 C.F.R. § 1208.18(a)(1) (defining

“torture” as pain or suffering “inflicted by, or at the instigation of, or with the

consent or acquiescence of, a public official acting in an official capacity or other

person acting in an official capacity”). Thus, the record does not compel the

conclusion that Hernandez will “more likely than not” be tortured if returned to

Mexico.

3. The IJ did not err by considering only past torture in the CAT analysis or

by failing to provide a reasoned statement or analysis in concluding that Hernandez

failed to establish a reasonable fear of torture. The IJ considered “all evidence

relevant to the possibility of future torture,” 8 C.F.R. § 1208.16(c)(3), and provided

4 a reasoned explanation in the record explaining that Hernandez “has not suffered

harm rising to the level of persecution or torture” and that “[t]here is no reason to

believe that the authorities are looking for [him] or interested in [him] in order to

torture him or that they would turn a blind eye if someone else did.”

PETITION FOR REVIEW DENIED.