Menchaca Ortiz v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2023
• Docket: 21-1223
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARTIN MENCHACA ORTIZ, No. 21-1223 Agency No. Petitioner, A090-485-255 v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 17, 2023**

Before: NGUYEN, OWENS, and FRIEDLAND, Circuit Judges.

Petitioner Martin Menchaca Ortiz (“Menchaca”), a native and citizen of

Mexico, petitions pro se for review of a Board of Immigration Appeals’

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

of withholding of removal and protection under the Convention Against Torture

(“CAT”). As the parties are familiar with the facts, we do not recount them

here. We deny the 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). “Where, as here, the BIA cites [Matter of Burbano, 20 I. & N. Dec. 872,

874 (BIA 1994)] and also provides its own review of the evidence and law, we

review both the IJ’s and the BIA’s decisions.” Cordoba v. Barr, 962 F.3d 479,

481 (9th Cir. 2020) (citation omitted). “We review purely legal questions de

novo, and the agency’s factual findings for substantial evidence.” Perez-

Portillo v. Garland, 56 F.4th 788, 792 (9th Cir. 2022). Under the substantial

evidence standard, “administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B).

1. Substantial evidence supports the agency’s denial of withholding of

removal because Menchaca failed to demonstrate a nexus between the alleged

persecution and a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016

(9th Cir. 2010) (holding that crime motivated by theft or random violence by

gang members “bears no nexus to a protected ground”).

2. Because Menchaca did not raise his CAT claim before the BIA, we

decline to consider it and deny this portion of the petition. See Santos-Zacaria

v. Garland, 143 S. Ct. 1103, 1114 (2023) (holding that, although 8 U.S.C.

§ 1252(d)(1)’s exhaustion requirement is not jurisdictional, it is still subject to

the rules regarding waiver and forfeiture); Umana-Escobar v. Garland, 69 F.4th

544, 550 (9th Cir. 2023) (declining to consider issue that the petitioner failed to

exhaust before the BIA).

3. The BIA properly rejected Menchaca’s argument that the IJ violated

2 21-1223 his due process rights by failing to adequately develop the record. See Hussain

v. Rosen, 985 F.3d 634, 642–45 (9th Cir. 2021) (stating that a “petitioner facing

removal ‘is entitled to a full and fair hearing of his claims and a reasonable

opportunity to present evidence on his behalf’” and holding that the IJ

adequately developed the record (citation omitted)). We note that though

Menchaca appears pro se before this court, he was represented by counsel

before the IJ and the BIA. Cf. Agyeman v. INS, 296 F.3d 871, 877 (9th Cir.

2002) (stating that due process’s full and fair hearing requirement includes the

IJ’s duty to “fully develop the record” by “scrupulously and conscientiously

prob[ing] into . . . all the relevant facts” when a petitioner appears pro se

(citations omitted)).

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

PETITION DENIED.

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