MacIas-solis v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2023
• Docket: 21-368
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO MACIAS-SOLIS, No. 21-368 Agency No. Petitioner, A213-212-440 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 8, 2023** Pasadena, California

Before: GRABER and OWENS, Circuit Judges, and TUNHEIM, District Judge.***

Ricardo Macias-Solis, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal of

an immigration judge’s (“IJ”) decision denying his applications for asylum,

* 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). *** The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. withholding of removal, and protection under the Convention Against Torture

(“CAT”). “Where, as here, the BIA summarily adopts the IJ’s decision without

opinion pursuant to 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as if it

were the BIA’s decision.” Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir.

2023) (internal quotation marks and citation omitted). We review the agency’s

factual determinations for substantial evidence, meaning that we may reverse

only if the evidence compels a contrary conclusion. Umana-Escobar v.

Garland, 62 F.4th 1223, 1228 (9th Cir. 2023). As the parties are familiar with

the facts, we do not recount them here. We deny the petition for review.

1. The IJ determined that Macias-Solis was statutorily barred from

asylum because he did not apply until almost fifteen years after he entered the

United States, and he failed to show that he qualified for an exception to the

one-year deadline. See 8 U.S.C. § 1158(a)(2)(B), (D); 8 C.F.R. § 1208.4(a)(2).

In his opening brief, Macias-Solis does not address, and therefore has waived,

any challenge to this aspect of the IJ’s decision. See Lopez-Vasquez v. Holder,

706 F.3d 1072, 1079-80 (9th Cir. 2013) (holding that a petitioner waived issues

not specifically raised and argued in an opening brief).

2. Regarding withholding of removal, Macias-Solis alleged persecution

primarily based on three events: (1) the 1994 murder of his cousin by unknown

individuals; (2) the 2010 murder of his uncle, who had formerly worked for the

district attorney’s office, by a cartel; and (3) a 2004 phone call to his mother

from an unknown individual who threatened to kidnap Macias-Solis. Although

2 Macias-Solis did not identify a particular social group, the IJ construed his

claim as alleging fear of harm based on either family membership or resistance

to cartel recruitment.

The IJ determined that Macias-Solis did not establish past harm rising to

the level of persecution, a ruling that Macias-Solis has waived by failing to

address in his opening brief. See id. In addition, the IJ’s determination that

Macias-Solis failed to show harm on account of a protected ground is supported

by substantial evidence. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th

Cir. 2021) (holding that the petitioner failed to establish a nexus with his

proposed particular social group of his family because “the record does not

contain any evidence that his uncle’s membership in the Santos-Ponce family

was . . . a reason that the gang killed him”).

3. Finally, under the CAT, substantial evidence supports the IJ’s

determination that Macias-Solis failed to demonstrate that he will more likely

than not be tortured if returned to Mexico. See id. at 891.

The stay of removal remains in place until the mandate issues.

PETITION DENIED.