Martin-Mendoza v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 4, 2024
• Docket: 21-773
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ORALIA MARTIN-MENDOZA, No. 21-773 Agency No. Petitioner, A205-773-795 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 8, 2023** Pasadena, California

Before: WARDLAW and BUMATAY, Circuit Judges, and KENNELLY, District Judge.***

* 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 Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. Oralia Martin-Mendoza, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (BIA) decision affirming the order of

an immigration judge (IJ) denying her claims for asylum, withholding of removal,

and protection under the Convention Against Torture (CAT).

We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the BIA

“conducts its own review of the evidence and law rather than adopting the IJ’s

decision, our review is limited to the BIA’s decision, except to the extent that the

IJ’s opinion is expressly adopted.” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th

Cir. 2010) (citation and internal quotation marks omitted). We review the

agency’s legal conclusions de novo and its factual findings for substantial

evidence. Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020) (citation omitted).

We deny Martin-Mendoza’s petition.

1. Martin-Mendoza argues that that the IJ lacked jurisdiction over her

proceedings because she was served with a Notice to Appear (NTA) that did not

include the time and date for her removal hearing. This argument is squarely

foreclosed by our precedent. United States v. Bastide-Hernandez, 39 F.4th 1187,

1190 (9th Cir. 2022) (en banc). Martin-Mendoza also argues that her case should

be remanded for consideration of voluntary departure due to this defective NTA.

We decline to consider this argument because she failed to properly exhaust the

claim. Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023).

2 21-773 Specifically, Martin-Mendoza did not seek voluntary departure before the IJ and

did not present this issue before the BIA.

2. Substantial evidence supports the agency’s determination that Martin-

Mendoza is ineligible for asylum. Martin-Mendoza failed to apply for asylum

within one year of her arrival as required by 8 U.S.C. § 1158(a)(2)(B). She argues

that her desire to avoid reliving her traumatizing past constitutes an “extraordinary

circumstance[]” that excused her untimely filing. See 8 U.S.C. § 1158(a)(2)(D).

But the IJ properly considered her testimony regarding her initial apprehension to

apply for asylum to find that her mental state did not rise to the level of an

“extraordinary circumstance” analogous to those listed in 8 C.F.R. § 1208.4(a)(5).

See Alquijay v. Garland, 40 F.4th 1099, 1104-05 (9th Cir. 2022) (ruling that

petitioner failed to demonstrate that the mental toll of fleeing his homeland

constituted an extraordinary circumstance). Martin-Mendoza asks us to consider

whether her PTSD diagnosis constitutes an “extraordinary circumstance.” But our

jurisdiction to review the IJ’s extraordinary circumstances determination “is

limited to instances where the underlying facts are undisputed.” Gasparyan v.

Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (quotation omitted). Because the

relation between her diagnosis and her untimely filing is not an undisputed fact, we

lack jurisdiction to review whether her PTSD constitutes an “extraordinary

circumstance.” Absent an exception, Martin-Mendoza is statutorily barred from

3 21-773 asylum eligibility.

3. Substantial evidence supports the agency’s determination that Martin-

Mendoza does not qualify for withholding of removal because she failed to

establish that she was or would be persecuted on account of a protected ground.

See Garcia v. Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021) (citation omitted)

(“The applicant must demonstrate a nexus between her past or feared harm and a

protected ground.”). The mistreatment Martin-Mendoza faced from her teachers

may have been on account of her status as an indigenous person, but their actions

did not rise to the level of persecution. See Sharma v. Garland, 9 F.4th 1052, 1060

(9th Cir. 2021) (citation omitted) (“Persecution … is an extreme concept that

means something considerably more than discrimination or harassment.”).

There is no dispute that the rape Martin-Mendoza suffered as a child

constitutes past persecution. But Martin-Mendoza has not established a nexus

between her past persecution and her “race, religion, nationality, membership in a

particular social group, or political opinion.” Sumolang v. Holder, 723 F.3d 1080,

1083 (9th Cir. 2013) (citation omitted). Martin-Mendoza testified that she did not

know the men who assaulted her, and she did not express a belief that they targeted

her because of any protected characteristic. There is no evidence in the record that

she was assaulted “on account of” a statutorily protected ground rather than as a

“random act of violence.” Ochave v. I.N.S., 254 F.3d 859, 866 (9th Cir. 2001).

4 21-773 And Martin-Mendoza’s general fear of being harmed by criminals in Guatemala

“bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007, 1016

(9th Cir. 2010). Because the evidence in the record does not compel a conclusion

contrary to the agency’s that Martin-Mendoza had not established that her “life or

freedom would be threatened in [Guatemala] on account of” a statutorily protected

ground, 8 C.F.R. § 1208.16(b), she is ineligible for withholding of removal.

4. Substantial evidence likewise supports the agency’s finding that

Martin-Mendoza did not demonstrate a likelihood of torture if returned to

Guatemala. To qualify for CAT relief, “[t]he torture must be by government

officials or private actors with government acquiescence.” Arrey v. Barr, 916 F.3d

1149, 1160 (9th Cir. 2019) (citation omitted). The sexual assault Martin-Mendoza

suffered constitutes past torture. But Martin-Mendoza did not show that any

future harm would be by or with the acquiescence of the Guatemalan government.

Martin-Mendoza points to country conditions reports as evidence that the

Guatemalan government has not been effective in remedying violence. But this

general ineffectiveness, without more, is insufficient to show acquiescence. See

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).

5. The IJ did not abuse his discretion by refusing to admit into evidence

the psychological evaluation and human rights report that Martin-Mendoza

presented on the morning of her merits hearing. An IJ has broad discretion over

5 21-773 whether to consider supplemental evidence that is offered after a court-mandated

deadline. Owino v. Holder, 771 F.3d 527, 532 (9th Cir. 2014). Martin-Mendoza’s

counsel conceded this evidence was untimely and that his request did not conform

with applicable requirements for untimely filings. Furthermore, the psychological

evaluation had been completed three months before the original filing deadline and

nine months before the merits hearing. Under these circumstances, the IJ did not

abuse his discretion by rejecting the untimely request. See Taggar v. Holder, 736

F.3d 886, 889 (9th Cir. 2013) (finding no abuse of discretion in IJ’s decision to

reject applications for relief from removal filed after court-ordered deadline).

Additionally, Martin-Mendoza has failed to demonstrate that the IJ’s refusal

to admit the new evidence violated her due process rights. We will grant a petition

on due process grounds only if the proceeding was “so fundamentally unfair that

the alien was prevented from reasonably presenting his case.” Gutierrez v. Holder,

662 F.3d 1083, 1091 (9th Cir. 2011) (quotation omitted). Even without admitting

the psychological evaluation, the IJ expressly acknowledged that Martin-

Mendoza’s trauma may have contributed to her delayed filing and credited her

testimony regarding why she failed to apply for asylum before the one-year

deadline. Furthermore, the agency considered “general country conditions” when

analyzing Martin-Mendoza’s eligibility for protection from removal. The IJ’s

refusal to admit this evidence did not prevent Martin-Mendoza from reasonably

6 21-773 presenting her case or potentially impact the outcome of the proceedings.

PETITION DENIED.

7 21-773