Julio Medina Melendez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2021
• Docket: 20-71266
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIO CESAR MEDINA MELENDEZ, No. 20-71266

Petitioner, Agency No. A094-292-254

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

Respondent.

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

Submitted June 10, 2021** Pasadena, California

Before: GRABER, CALLAHAN, and FORREST, Circuit Judges.

Julio Cesar Medina-Melendez seeks review of a Board of Immigration

Appeals’ (BIA) order denying his application for withholding of removal and

protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252(a) and dismiss in part and deny in part his petition.

* 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). 1. We lack jurisdiction to consider Medina’s due process claim that the

Immigration Judge (IJ) improperly barred him from introducing additional

evidence at his 2018 hearing about (1) his alleged persecutor’s continued political

influence and (2) the likelihood of future persecution and torture because Medina

did not present this claim to the BIA. See Aguilar-Osorio v. Garland, 991 F.3d

997, 999 (9th Cir. 2021) (per curiam). Even if Medina had exhausted this claim, he

waived it by not raising it in his opening brief. See Velasquez-Gaspar v. Barr, 976

F.3d 1062, 1065 (9th Cir. 2020).

2. Substantial evidence supports the BIA’s finding that Medina is

ineligible for withholding of removal and CAT protection. See Garcia v.

Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (stating standard). Although the

IJ’s conclusion that Medina’s sister qualifies for asylum bears on whether Medina

can establish a nexus between his family group and future persecution, it does not

control whether he can establish a clear probability that he would suffer future

harm. See id. at 1146 (noting that “[t]he ‘clear probability’ standard for

withholding is a more stringent burden of proof than the standard for asylum,

which does not require that the applicant demonstrate that harm would be more

likely than not to occur” (citation omitted)). Medina offered only conjectural

evidence of his alleged persecutor’s continued political influence and desire for

revenge. See 8 U.S.C. § 1231(b)(3)(C); see also Bartolome v. Sessions, 904 F.3d

2 803, 814 (9th Cir. 2018) (“Speculation on what could occur is not enough to

establish a reasonable fear.”). Regarding his CAT claim, Medina similarly only

speculated that he would be tortured if returned to Honduras. Garcia, 988 F.3d at

1147–48 (citing In re V-X-, 26 I. & N. Dec. 147, 154 (B.I.A. 2013)).

The BIA correctly relied on the passage of time in denying Medina’s

application, see Gui v. INS, 280 F.3d 1217, 1230 (9th Cir. 2002); see also 8 C.F.R.

§ 1208.24(b)(1), despite the BIA’s 2016 unopposed remand causing some of the

delay in resolving Medina’s application. And even if the BIA erred by finding that

the IJ initially concluded that Medina was not credible the error was harmless

because the BIA accepted Medina’s testimony as credible for the purposes of

appeal.

3. The BIA did not violate Medina’s due process rights. The possibility

that another fact finder might have drawn a different inference from the record

neither negates the substantial evidence in the record that supports the BIA’s

decision nor establishes a due process violation. Garcia, 988 F.3d at 1142. Instead

of offering a “boilerplate” answer to Medina’s appeal, the BIA specifically

explained why it agreed with the IJ that Medina failed to establish a clear

probability of future harm if he returned to Honduras and noted that there was no

support for Medina’s assertion that the IJ ignored the evidence.

4. Finally, the record does not support Medina’s conclusory argument

3 that the BIA misapplied the standard of review.

PETITION DISMISSED IN PART AND DENIED IN PART.