Jose Jimenez-Lopez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2022
• Docket: 17-70773
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE JIMENEZ-LOPEZ, AKA Jose Pablo No. 17-70773 Jimenez-Lopez, Agency No. A200-244-650 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 8, 2022** Portland, Oregon

Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,*** District Judge.

Petitioner Jose Jimenez-Lopez, a native of Mexico, petitions for review of

* 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 John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. 1 the Board of Immigration Appeals’ (BIA) denial of his application for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT). We have jurisdiction under 8 U.S.C. § 1252(a). We review the agency’s

factual findings for substantial evidence and its conclusions of law de novo. Arrey

v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). We dismiss the petition for review of

the denial of asylum for lack of jurisdiction and deny the petition as to the BIA’s

denial of withholding of removal and CAT protection.

The Immigration Judge (IJ) concluded that Jimenez-Lopez was ineligible for

asylum because he failed to apply within one year of his arrival in the United

States. See 8 U.S.C. § 1158(a)(2)(B). Jimenez-Lopez failed to address that ruling

before the BIA, and the BIA considered the issue to be waived. We therefore lack

jurisdiction to consider Jimenez-Lopez’s eligibility for asylum. See Abebe v.

Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (“Petitioner will . . . be

deemed to have exhausted only those issues he raised and argued in his brief

before the BIA.”).

As to withholding of removal, the BIA concluded that Jimenez-Lopez had

not suffered past persecution and that he did not establish a clear probability of

future persecution. Substantial evidence supports the agency’s determination that

the threats that Jimenez-Lopez suffered in Mexico did not rise to the level of past

persecution. Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000) (“Our court generally

Panel 2 treats unfulfilled threats, without more, as within that category of conduct

indicative of a danger of future persecution, rather than as past persecution itself.”).

Substantial evidence also supports the agency’s determination that Jimenez-Lopez

did not establish a clear probability of future persecution in Mexico. Jimenez-

Lopez was never physically harmed in Mexico, and his family continues to live

there unharmed. Further, there is no evidence that the individuals who threatened

him over ten years ago are still interested in him. See Canales-Vargas v. Gonzales,

441 F.3d 739, 747 (9th Cir. 2006) (petitioner established a well-founded fear of

future persecution because of threats, “but not the clear probability of it”); Kaiser

v. Ashcroft, 390 F.3d 653, 660 (9th Cir. 2004) (petitioner did not establish clear

probability of future persecution when he was placed on a hit list, shot at on two

occasions, and threatened in two different cities on opposite sides of the country).

Additionally, the BIA concluded that Jimenez-Lopez was ineligible for

withholding of removal because he could safely relocate within Mexico. See

8 C.F.R. § 1208.16(b)(2) (“[A]n applicant cannot demonstrate that his or her life or

freedom would be threatened if the asylum officer or immigration judge finds that

the applicant could avoid a future threat to his or her life or freedom by relocating

to another part of the proposed country of removal and, under all the

circumstances, it would be reasonable to expect the applicant to do so.”). That

conclusion is supported by evidence that Jimenez-Lopez’s family still lives in

Panel 3 Mexico without harm and that Jimenez-Lopez was able to safely relocate within

Mexico for three months before entering the United States.

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

Because Jimenez-Lopez failed to show a clear probability that he will be

persecuted if returned to Mexico, as discussed above, he cannot meet the higher

threshold for showing a probability of torture. Davila v. Barr, 968 F.3d 1136, 1144

(9th Cir. 2020) (“Torture is more severe than persecution.” (quoting Guo v.

Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018))).

Lastly, to the extent that Jimenez-Lopez argues that the BIA’s streamlined

decision violated his Fifth Amendment due process right, that argument is without

merit. Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1323 (9th Cir. 2006).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

Panel 4