Jose Molina v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2022
• Docket: 20-72043
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 8 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE WILSON MOLINA, No. 20-72043

Petitioner, Agency No. A208-836-784

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

Respondent.

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

Submitted June 13, 2022** San Francisco, California

Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.

Petitioner Jose Wilson Molina is a citizen of Honduras who entered the

United States around August 2004 without inspection. He seeks relief from denial

of an application for asylum, withholding of removal, and protection under the

* 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). Convention Against Torture (CAT) by an immigration judge (IJ) that was affirmed

by the Board of Immigration Appeals (BIA). The agency determined that Molina’s

asylum claim was time barred and that he failed to establish eligibility for

withholding of removal because his proposed particular social groups were not

legally cognizable, he had failed to establish nexus, he had not demonstrated that

the Honduran government was unable or unwilling to protect him, and he could

reasonably relocate to avoid harm. Molina contends that the agency erred in all

respects.1 The government has sought remand to the agency to consider, in the

first instance, the implications of the vacatur of Matter of L-E-A-, 27 I. & N. Dec.

581 (A.G. 2019), by Matter of L-E-A-, 28 I. & N. Dec. 304 (A.G. 2021), on the

agency’s cognizability and nexus determinations.2 Because our decision does not

rest on either determination, we deny the motion. We have jurisdiction under 8

U.S.C. § 1252(a)(1), and we deny the petition.

1 Although Molina nominally asserts that the agency erred in denying his CAT claim, he presents no legal argument to support the contention, and his claim is abandoned. Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not supported by argument are deemed abandoned.”). 2 We recognize that the government’s counsel was delayed in filing the motion for remand because of a life-threatening health emergency. The timing of the motion plays no role in our decision. 2 Where the BIA affirms the IJ and cites its decision in Matter of Burbano, 20

I. & N. Dec. 872, 874 (B.I.A. 1994), while adding its own analysis, we review the

decisions of the IJ and BIA together, and we review the agency’s factual findings

for substantial evidence. See Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir.

2013); Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). A petitioner

contending that the agency’s findings are erroneous must establish that the

evidence not only supports a contrary conclusion, but compels it. See Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (“A finding

by the IJ is not supported by substantial evidence when any reasonable adjudicator

would be compelled to conclude to the contrary based on the evidence in the

record.” (cleaned up) (quoting Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.

2014))).

1. Molina contends that the BIA improperly affirmed dismissal of his

asylum claim. Although asylum seekers are generally required to file their

applications within one year of arriving in the United States, the deadline may be

extended by showing “changed circumstances” that materially affect their

eligibility for asylum. 8 U.S.C. § 1158(a)(2)(B), (D); Sumolang v. Holder, 723

F.3d 1080, 1082 (9th Cir. 2013). The asylum seeker then has a “reasonable

period” in which to file the application. 8 C.F.R. § 1208.4(a)(4)(ii); see Husyev v.

3 Mukasey, 528 F.3d 1172, 1182 & n.4 (9th Cir. 2008) (holding that, “[i]n the

absence of any special considerations,” a six-month deadline is reasonable). We

have jurisdiction to consider changed circumstances where the agency’s

determination relies on undisputed facts. Sumolang, 723 F.3d at 1083. Both the IJ

and BIA noted that the murder of Molina’s uncle in 2013 constituted changed

circumstances, giving him a “reasonable period” from that date in which to apply

for asylum. Following the murder of his uncle, Molina likewise lost a cousin in

2014, his father in 2015, another uncle in 2016, and then another cousin’s husband

in 2017. Yet, Molina did not apply for asylum until 2018, five years after the

initial killing and over two years after the death of his own father. In context,

Molina has not demonstrated that the murder of his cousin’s husband constitutes

materially changed circumstances for purposes of his asylum claim. See

Sumolang, 723 F.3d at 1083 (holding that the reasonable period in which to file

begins after an applicant learns of violence and is not extended throughout the

violence’s duration). Accordingly, the agency did not err in holding that his

asylum claim is time barred.

2. Molina asserts that the BIA erred in affirming the denial of his

withholding claim. Even assuming that Molina stated legally cognizable particular

social groups and has shown nexus, he has not demonstrated that the Honduran

4 government was unwilling or unable to protect him from Los Samueles or that he

could not reasonably relocate within Honduras to avoid harm. See 8 C.F.R.

§ 1208.16(b)(2).

First, the IJ identified country conditions evidence that indicated the

Honduran government has undertaken significant efforts to curtail violence and

corruption in the country. Indeed, the government has passed substantive

legislation that has halved the homicide rate, improved the police force, and

increased citizen safety.

Second, the record supports the agency’s conclusion that Molina could

reasonably relocate in Honduras to avoid harm. Molina concedes that Los

Samueles are only located in his hometown, and the IJ noted that there was

insufficient evidence to show that they pose a threat outside the village. As Molina

is otherwise an able-bodied man with work experience, relocation is not

unreasonable. See 8 C.F.R. § 1208.16(b)(3) (“[A]djudicators should consider the

totality of the relevant circumstances . . . including the size of the country[,] . . . the

geographic locus of the alleged persecution, the size, reach, or numerosity of the

alleged persecutor, and the applicant’s demonstrated ability to relocate to the

United States . . . .”). Because substantial evidence supports the agency’s findings

that the Honduran government was not unable or unwilling to protect Molina from

5 Los Samueles and that he could reasonably relocate and avoid harm, we deny the

petition.

PETITION DENIED.