Luis Chavez-Farias v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2018
• Docket: 17-71944
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS ALBERTO CHAVEZ-FARIAS, No. 17-71944

Petitioner, Agency No. A077-158-480

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Immigration Judge

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Luis Alberto Chavez-Farias, a native and citizen of Mexico, petitions for

review of an immigration judge’s (“IJ”) determination under 8 C.F.R. § 1208.31(a)

that he did not have a reasonable fear of persecution or torture in Mexico and thus

is not entitled to relief from his reinstated removal order. Our jurisdiction is

* 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). governed by 8 U.S.C. § 1252. We review for substantial evidence the IJ’s factual

findings. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). We

dismiss in part and deny in part the petition for review.

Chavez-Farias does not dispute his removability under 8 U.S.C.

§ 1182(a)(6)(A)(i). Thus, even if Chavez-Farias’s conviction has been vacated, he

has not established a gross miscarriage of justice so as to permit review of his

collateral challenge to the underlying removal order. See Garcia de Rincon v.

Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008) (while a petitioner is

generally prevented from collaterally attacking an underlying removal order on

constitutional due process grounds, 8 U.S.C. § 1252(a)(2)(D) permits some

measure of review if the petitioner can demonstrate a “gross miscarriage of justice”

in the prior proceedings). We therefore lack jurisdiction to review Chavez-Farias’s

challenge to the removal order.

We also lack jurisdiction to consider Chavez-Farias’s proposed social group

that he raises for the first time in his opening brief. See Barron v. Ashcroft, 358

F.3d 674, 677-78 (9th Cir. 2004) (petitioner must exhaust issues or claims in

administrative proceedings below).

Substantial evidence supports the IJ’s conclusion that Chavez-Farias failed

to demonstrate a reasonable possibility of future persecution in Mexico on account

of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)

2 17-71944 (petitioner’s “desire to be free from harassment by criminals motivated by theft or

random violence . . . bears no nexus to a protected ground”); Molina-Morales v.

INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (harm based on personal retribution is

not persecution on account of a protected ground).

Finally, substantial evidence also supports the IJ’s conclusion that Chavez-

Farias failed to demonstrate a reasonable possibility of torture by or with the

consent or acquiescence of the government of Mexico. See Andrade-Garcia, 828

F.3d at 836-37.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

3 17-71944