NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JUAN RUBEN HUANTE MARTINEZ, No. 19-70096 AKA Juan Ruben Huante, Agency No. A205-318-125 Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 1, 2021** Pasadena, California
Before: GOULD, OWENS, and VANDYKE, Circuit Judges.
Juan Ruben Huante Martinez (Petitioner) petitions for review of the Board of
Immigration Appeal’s (BIA) dismissal of his appeal of the Immigration Judge’s (IJ)
denial of asylum, withholding of removal, and protection under the Convention
* 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). Against Torture (CAT). We have jurisdiction to review under 8 U.S.C. § 1252(a)(1)
and we deny the petition.
1. Petitioner’s application for asylum is untimely and substantial evidence
supports the BIA’s determination that he did not demonstrate “extraordinary
circumstances” excusing his delay. 8 U.S.C. § 1158(a)(2)(B), (D); Al Ramahi v.
Holder, 725 F.3d 1133, 1138 (9th Cir. 2013).1 Petitioner failed to provide any
evidence beyond vaguely asserting before the BIA “that at an unknown time he
spoke with an unknown person” who gave him incorrect advice on his eligibility for
asylum, and thus he declined to file for asylum until fourteen years had passed after
he entered the United States in 2000.
Before this court, Petitioner again asserted only that “individuals [he] believed
to be attorneys” told him he could not file for asylum. Given Petitioner’s failure to
provide the “pertinent information regarding the timing of the encounter” or “the
circumstances of the encounter,” substantial evidence supports the BIA’s
determination that Petitioner cannot establish justified reliance on the deficient
1 The BIA correctly determined Petitioner waived any “challenge [to] the [IJ]’s determination that … his untimely filing should be excused on the basis of changed circumstances,” thus we do not have jurisdiction to address his attempt to make this argument before us on appeal. Vargas v. INS, 831 F.2d 906, 907–08 (9th Cir. 1987) (“Failure to raise an issue in an appeal to the [Board] constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.”).
2 advice. See Al Ramahi, 725 F.3d at 1138–39; Husyev v. Mukasey, 528 F.3d 1172,
1182 (9th Cir. 2008).2
2. Substantial evidence supports the BIA’s conclusion that Petitioner did not
demonstrate past persecution or a well-founded fear of future persecution on account
of a statutorily protected ground sufficient for either asylum3 or withholding of
removal. 8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); Zetino v. Holder,
622 F.3d 1007, 1015 (9th Cir. 2010) (reviewing the BIA’s denial of applications for
asylum and withholding of removal for substantial evidence); see Barajas-Romero
v. Lynch, 846 F.3d 351, 357–60 (9th Cir. 2017). Petitioner claimed he sufficiently
alleged a nexus between various events from his childhood and a more recent
threatening phone call received by his mother to his membership in various
particular social groups (PSGs). Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016)
(noting a PSG must be “(1) composed of members who share a common immutable
2 Petitioner additionally argues he also did not know relief was available to him when he illegally entered the United States because he was not conversant in English. Neither the inability to speak English nor ignorance of the legal system constitute extraordinary circumstances. Toj-Culpatan v. Holder, 612 F.3d 1088, 1091 (9th Cir. 2010) (per curiam); Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003). 3 Were we to determine Petitioner’s asylum application was not time-barred, Petitioner would still need to demonstrate past persecution on account of a protected ground to be eligible for humanitarian asylum, and substantial evidence supports the BIA’s conclusion that Petitioner failed to do so. 8 C.F.R. § 1208.13(b)(1); (b)(2).
3 characteristic, (2) defined with particularity, and (3) socially distinct within the
society in question” (citation omitted)).
Because they are not administratively exhausted, we decline to review the
three PSGs that Petitioner presents before us but did not raise before the IJ or BIA:
“witness to gang crime,” “anti-gang political opinion,” and “someone who the police
are unable or unwilling to protect.” See Vargas, 831 F.2d at 907–08. Because he
failed to raise it before us, Petitioner further waived our consideration of the only
PSG he did raise before the IJ and the BIA: “returning Mexicans from the United
States perceived as having wealth.” Martinez-Serrano v. INS, 94 F.3d 1256, 1259
(9th Cir. 1996) (“[A]n issue … not discussed in the body of the opening brief is
deemed waived.”).4 Without a cognizable PSG preserved before this court,
4 Petitioner’s final PSG, “family membership,” was raised before the BIA but not the IJ, prompting the BIA to observe it could not address newly articulated social groups on appeal. Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (BIA 2018) (“Where, as here, an applicant delineates a social group for the first time on appeal, the Immigration Judge will not have had an opportunity to make relevant factual findings, which [the BIA] cannot do in the first instance on appeal.”). Although the BIA did go on to note deficiencies in the framing of Petitioner’s “family” PSG, the BIA may “elect[] to consider [an issue] on its substantive merits despite a procedural default” only if the “alien raises [the] issue to the IJ,” Arsdi v. Holder, 659 F.3d 925, 929 (9th Cir.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JUAN RUBEN HUANTE MARTINEZ, No. 19-70096 AKA Juan Ruben Huante, Agency No. A205-318-125 Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 1, 2021** Pasadena, California
Before: GOULD, OWENS, and VANDYKE, Circuit Judges.
Juan Ruben Huante Martinez (Petitioner) petitions for review of the Board of
Immigration Appeal’s (BIA) dismissal of his appeal of the Immigration Judge’s (IJ)
denial of asylum, withholding of removal, and protection under the Convention
* 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). Against Torture (CAT). We have jurisdiction to review under 8 U.S.C. § 1252(a)(1)
and we deny the petition.
1. Petitioner’s application for asylum is untimely and substantial evidence
supports the BIA’s determination that he did not demonstrate “extraordinary
circumstances” excusing his delay. 8 U.S.C. § 1158(a)(2)(B), (D); Al Ramahi v.
Holder, 725 F.3d 1133, 1138 (9th Cir. 2013).1 Petitioner failed to provide any
evidence beyond vaguely asserting before the BIA “that at an unknown time he
spoke with an unknown person” who gave him incorrect advice on his eligibility for
asylum, and thus he declined to file for asylum until fourteen years had passed after
he entered the United States in 2000.
Before this court, Petitioner again asserted only that “individuals [he] believed
to be attorneys” told him he could not file for asylum. Given Petitioner’s failure to
provide the “pertinent information regarding the timing of the encounter” or “the
circumstances of the encounter,” substantial evidence supports the BIA’s
determination that Petitioner cannot establish justified reliance on the deficient
1 The BIA correctly determined Petitioner waived any “challenge [to] the [IJ]’s determination that … his untimely filing should be excused on the basis of changed circumstances,” thus we do not have jurisdiction to address his attempt to make this argument before us on appeal. Vargas v. INS, 831 F.2d 906, 907–08 (9th Cir. 1987) (“Failure to raise an issue in an appeal to the [Board] constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.”).
2 advice. See Al Ramahi, 725 F.3d at 1138–39; Husyev v. Mukasey, 528 F.3d 1172,
1182 (9th Cir. 2008).2
2. Substantial evidence supports the BIA’s conclusion that Petitioner did not
demonstrate past persecution or a well-founded fear of future persecution on account
of a statutorily protected ground sufficient for either asylum3 or withholding of
removal. 8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); Zetino v. Holder,
622 F.3d 1007, 1015 (9th Cir. 2010) (reviewing the BIA’s denial of applications for
asylum and withholding of removal for substantial evidence); see Barajas-Romero
v. Lynch, 846 F.3d 351, 357–60 (9th Cir. 2017). Petitioner claimed he sufficiently
alleged a nexus between various events from his childhood and a more recent
threatening phone call received by his mother to his membership in various
particular social groups (PSGs). Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016)
(noting a PSG must be “(1) composed of members who share a common immutable
2 Petitioner additionally argues he also did not know relief was available to him when he illegally entered the United States because he was not conversant in English. Neither the inability to speak English nor ignorance of the legal system constitute extraordinary circumstances. Toj-Culpatan v. Holder, 612 F.3d 1088, 1091 (9th Cir. 2010) (per curiam); Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003). 3 Were we to determine Petitioner’s asylum application was not time-barred, Petitioner would still need to demonstrate past persecution on account of a protected ground to be eligible for humanitarian asylum, and substantial evidence supports the BIA’s conclusion that Petitioner failed to do so. 8 C.F.R. § 1208.13(b)(1); (b)(2).
3 characteristic, (2) defined with particularity, and (3) socially distinct within the
society in question” (citation omitted)).
Because they are not administratively exhausted, we decline to review the
three PSGs that Petitioner presents before us but did not raise before the IJ or BIA:
“witness to gang crime,” “anti-gang political opinion,” and “someone who the police
are unable or unwilling to protect.” See Vargas, 831 F.2d at 907–08. Because he
failed to raise it before us, Petitioner further waived our consideration of the only
PSG he did raise before the IJ and the BIA: “returning Mexicans from the United
States perceived as having wealth.” Martinez-Serrano v. INS, 94 F.3d 1256, 1259
(9th Cir. 1996) (“[A]n issue … not discussed in the body of the opening brief is
deemed waived.”).4 Without a cognizable PSG preserved before this court,
4 Petitioner’s final PSG, “family membership,” was raised before the BIA but not the IJ, prompting the BIA to observe it could not address newly articulated social groups on appeal. Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (BIA 2018) (“Where, as here, an applicant delineates a social group for the first time on appeal, the Immigration Judge will not have had an opportunity to make relevant factual findings, which [the BIA] cannot do in the first instance on appeal.”). Although the BIA did go on to note deficiencies in the framing of Petitioner’s “family” PSG, the BIA may “elect[] to consider [an issue] on its substantive merits despite a procedural default” only if the “alien raises [the] issue to the IJ,” Arsdi v. Holder, 659 F.3d 925, 929 (9th Cir. 2011) (internal quotation marks and citation omitted), because it is the IJ who makes factual findings and the BIA is solely “an appellate body whose function is to review, not to create, a record.” Honcharov v. Barr, 924 F.3d 1293, 1296 (9th Cir. 2019) (per curiam) (citation omitted). The BIA’s summary denial of Petitioner’s unexhausted PSG of “family membership” does not preserve the issue for appeal and we similarly decline to review it. Rodas-Mendoza v. INS, 246 F.3d 1237, 1240 (9th Cir. 2001) (per curiam) (“Having failed to raise this argument before the IJ or the BIA, [Petitioner] has waived it and cannot raise it before this Court.”).
4 Petitioner cannot allege he was persecuted based on a protected ground and the
record does not compel reversal of the BIA’s denial of both asylum and withholding
of removal. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).
3. Substantial evidence supports the BIA’s determination that Petitioner is not
more likely than not to be tortured upon return to Mexico “inflicted by or … with
the consent or acquiescence of a public official.” 8 C.F.R. § 208.18(a)(1); 8 C.F.R.
§ 1208.16(c)(2); Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004) (reviewing for
substantial evidence whether a petitioner demonstrated a “particularized threat of
torture” (citation omitted)). Petitioner described a phone call his mother received
threatening to kill Petitioner if she did not pay a ransom, and an experience in his
childhood where police officers beat him when he was walking home from school.
Because Petitioner cited no further interactions with the police after age twelve and
testified that his mother ignored the extortion demands (with no evidence of
repercussions), substantial evidence supports the BIA’s determination that neither
the empty threats Petitioner’s mother received nor a single negative interaction with
the police constitute a “particularized threat of torture.” Dhital v. Mukasey, 532 F.3d
1044, 1051–52 (9th Cir. 2008) (per curiam) (citation omitted); Tamang v. Holder,
598 F.3d 1083, 1094–95 (9th Cir. 2010). That Petitioner’s mother reported the calls
to the police, and Petitioner informed “the person in charge of the town” about his
beating and received no assistance, does not demonstrate that upon Petitioner’s
5 return a public official would acquiesce to torture directed at Petitioner. Garcia-
Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police
were aware of a particular crime, but failed to bring the perpetrators to justice, is not
in itself sufficient to establish acquiescence in the crime.”).
PETITION DENIED.