Jose Mercado-Marcelo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2022
• Docket: 20-73658
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE MERCADO-MARCELO, No. 20-73658

Petitioner, Agency No. A205-671-606

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 7, 2022** Portland, Oregon

Before: GRABER and VANDYKE, Circuit Judges, and REISS,*** District Judge.

Petitioner Jose Mercado Marcelo timely seeks review of the Board of

Immigration Appeals’ ("BIA") dismissal of his appeal from an immigration judge’s

* 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 Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. ("IJ") entry of an order of removal and denial of relief from removal. Where, as

here, the BIA adopts the IJ’s decision, we review both decisions. Silva-Pereira v.

Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016). We review de novo questions of law,

and we review for substantial evidence the agency’s factual findings. Flores-

Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021). We deny the petition.

1. Substantial evidence supports the agency’s denial of asylum and

withholding of removal. In particular, substantial evidence supports the agency’s

conclusion that Petitioner did not experience past persecution. Petitioner himself

experienced no harm before he left his hometown of Urapicho, Mexico, in 1992,

and Petitioner’s mother and three of his siblings continue to live there without

harm. The record does not compel the conclusion that the general economic

conditions in Petitioner’s hometown in recent years, including an increased risk in

traveling to neighboring towns to conduct business, amount to persecution. See

Sharma v. Garland, 9 F.4th 1052, 1062 (9th Cir. 2021) (holding that, although

"substantial economic deprivation that constitutes a threat to life or freedom can

constitute persecution, . . . mere economic disadvantage alone does not rise to the

level of persecution" (citations omitted)); Hussain v. Rosen, 985 F.3d 634, 647 (9th

Cir. 2021) ("[T]his harm also lacks the individual targeting necessary to show

persecution because other [similarly situated persons] in [the petitioner’s] village

experienced the same losses."), petition for cert. filed, No. 21-889 (U.S. Dec. 13,

2 2021). Contrary to Petitioner’s assertion before us, the BIA expressly considered,

and rejected, his argument concerning economic harm.

Because Petitioner did not experience past persecution, he bears the burden

of proving that he could not relocate safely within Mexico. 8 C.F.R.

§§ 1208.13(b)(2)(ii), 1208.16(b)(3)(i). Substantial evidence supports the agency’s

conclusion that Petitioner failed to prove that he could not relocate safely within

Mexico. The record contains no evidence that the specific problems experienced

in Petitioner’s hometown exist throughout Mexico and, given Petitioner’s long

period living in this country, the IJ permissibly concluded that the "fact that

[Petitioner] does not have family elsewhere in Mexico does not appear to pose a

sufficient barrier to relocating elsewhere in the country."

2. The agency permissibly denied protection under the Convention Against

Torture because substantial evidence supports the conclusion that Petitioner is not

likely to be tortured in Mexico. The IJ considered the factors described in 8 C.F.R.

§ 1208.16(c)(3), and reasonably concluded that torture was unlikely. Petitioner has

not experienced past torture; no one in his town had been physically harmed in the

preceding five years; and neither Petitioner’s mother nor his siblings have been

physically harmed.

3. The agency correctly denied cancellation of removal. As Petitioner

concedes, he failed to establish good moral character, as required by 8 U.S.C.

3 § 1229b(b)(1)(B), because he was "confined, as a result of conviction, to a penal

institution for an aggregate period of [180] days or more." 8 U.S.C. § 1101(f)(7).

We reject Petitioner’s constitutional challenge to the statute. The reason for

Petitioner’s confinement—several convictions for driving under the influence of

alcohol—bears no relation to his constitutional theory that the good-moral-

character statute could suppress speech or other First Amendment rights. Nor has

Petitioner shown that "a substantial number"—if any—"of [the statute’s]

applications are unconstitutional, judged in relation to the statute’s plainly

legitimate sweep." United States v. Stevens, 559 U.S. 460, 473 (2010) (citation

omitted).

4. The government’s decision not to file a brief to the BIA has no legal

significance in this case. We have carefully considered Petitioner’s arguments to

the contrary, and we reject those arguments as unfounded. For example, the plain

text of 8 U.S.C. § 1252(d)(1) solely requires "the alien" to exhaust claims.

Petition DENIED.