Luis Serrano v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 2021
• Docket: 18-72089
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS GENNIFER SERRANO, Nos. 18-72089 19-71412 Petitioner, Agency No. A029-260-263 v.

ROBERT M. WILKINSON, Acting MEMORANDUM* Attorney General,

Respondent.

On Petition for Review of Orders of the Board of Immigration Appeals

Submitted February 17, 2021**

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.

In these consolidated petitions for review, Luis Gennifer Serrano, a native

and citizen of El Salvador, petitions for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”)

decision denying his applications for special rule cancellation of removal under

* 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). § 203 of the Nicaraguan Adjustment and Central American Relief Act

(“NACARA”), adjustment of status, asylum, withholding of deportation, and relief

under the Convention Against Torture (“CAT”) (petition No. 18-72089), and the

BIA’s order denying his motion to reconsider, terminate, or reopen (petition No.

19-71412). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

due process claims in immigration proceedings. Jiang v. Holder, 754 F.3d 733,

738 (9th Cir. 2014). We review for substantial evidence the agency’s factual

findings. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). We review for

abuse of discretion the denial of a motion to terminate, Dominguez v. Barr, 975

F.3d 725, 734 (9th Cir. 2020), and the denial of a motion to reopen, Bonilla v.

Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny in part and dismiss in part the

petition for review in No. 18-72089, and we deny the petition for review in No. 19-

71412.

As to petition No. 18-72089, Serrano’s contention that the IJ violated his

right to due process by applying a heightened discretionary standard to his

application for adjustment of status fails. See Lata v. INS, 204 F.3d 1241, 1246

(9th Cir. 2000) (“To prevail on a due process challenge to deportation proceedings,

[petitioner] must show error and substantial prejudice.”). Serrano’s contentions

that the IJ was biased, the IJ ignored evidence, or the BIA violated his right to due

process fail as unsupported by the record. See id.

2 18-72089 & 19-71412 We lack jurisdiction to review the agency’s discretionary denials of

NACARA cancellation of removal and adjustment of status because Serrano does

not raise a colorable constitutional claim or question of law. See 8 U.S.C.

§ 1252(a)(2)(B), (D); Monroy v. Lynch, 821 F.3d 1175, 1177-78 (9th Cir. 2016)

(disagreement with weighing of equities does not raise a colorable question of

law).

As to asylum and withholding of deportation, substantial evidence supports

the agency’s determination that Serrano failed to establish he suffered harm that

rose to the level of persecution. See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.

2004) (en banc) (persecution is “an extreme concept”); see also Duran-Rodriguez

v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (evidence of threats did not compel

the conclusion that petitioner suffered past persecution). Substantial evidence also

supports the agency’s determination that Serrano failed to establish the harm he

fears would be on account of a protected ground. See Zetino v. Holder, 622 F.3d

1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by

criminals motivated by theft or random violence by gang members bears no nexus

to a protected ground”). Thus, Serrano’s asylum and withholding of deportation

claims fail.

Substantial evidence supports the agency’s denial of CAT relief because

Serrano failed to show it is more likely than not he would be tortured by or with

3 18-72089 & 19-71412 the consent or acquiescence of the government if returned to El Salvador. See

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We reject as unsupported by the record Serrano’s contention that he was not

afforded an opportunity to submit evidence in support of his application for

asylum, withholding of deportation, and relief under the CAT.

As to petition No. 19-71412, Serrano does not challenge, and therefore

waives, the BIA’s denial of his motion to reconsider. See Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and

argued in a party’s opening brief are waived).

The BIA did not abuse its discretion in denying Serrano’s motion to

terminate proceedings pursuant to Pereira v. Sessions, 138 S. Ct. 2105 (2018). See

8 U.S.C. § 1252(b) (1989) (deferring to regulations to establish requirements to

provide notice of deportation proceedings); 8 C.F.R. § 242.1(b) (1990) (setting out

requirements for an order to show cause); see also Aguilar Fermin v. Barr, 958

F.3d 887, 895 (9th Cir. 2020) (“the lack of time, date, and place in the NTA sent to

[petitioner] did not deprive the immigration court of jurisdiction over her case”).

The BIA also did not abuse its discretion in denying Serrano’s motion to

reopen, where he did not establish prima facie eligibility for relief or challenge the

agency’s prior denial of asylum as a matter of discretion. See Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010) (“The BIA can deny a motion to reopen

4 18-72089 & 19-71412 on any one of at least three independent grounds—failure to establish a prima facie

case for the relief sought, failure to introduce previously unavailable, material

evidence, and a determination that even if these requirements were satisfied, the

movant would not be entitled to the discretionary grant of relief which he sought.”

(citation and internal quotation marks omitted)).

The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise

denied.

NO. 18-72089: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.

NO. 19-71412: PETITION FOR REVIEW DENIED.

5 18-72089 & 19-71412