Meza Vasquez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 27, 2023
• Docket: 22-1074
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HEYDI GISEL MEZA-VASQUEZ; No. 19-72245 MAURICIO JOSEPH MARTINEZ-MEZA; Agency Nos. DAYANA GISSEL MARTINEZ-MEZA, A206-735-261 A206-735-262 Petitioners, A206-735-263 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

HEYDI GISEL MEZA No. 22-1074 VASQUEZ; DAYANA GISSEL Agency Nos. MARTINEZ MEZA; MAURICIO JOSEPH A206-735-261 MARTINEZ MEZA, A206-735-263 A206-735-262 Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

On Petition for Review of Orders of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Board of Immigration Appeals

Submitted October 16, 2023** Pasadena, California

Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF, District Judge.***

Heydi Gisel Meza-Vasquez and her two derivative applicant children,

Mauricio Joseph Martinez-Meza and Dayana Gissel Martinez-Meza (together,

Petitioners), petition for review of two decisions of the Board of Immigration

Appeals (BIA). Petitioners are citizens of Honduras. They first petition for review

of a BIA decision dismissing their appeal from an order of an immigration judge

(IJ) denying their applications for asylum, withholding of removal, and relief under

the Immigration and Nationality Act and the Convention Against Torture (CAT);

and second petition for review of a BIA decision denying their motion to reopen.

We have jurisdiction under 8 U.S.C. § 1252. We deny the petitions for review.

1. Petitioners do not challenge the BIA’s determination that they failed

to show that any persecution “was committed by the [Honduran] government, or

by forces that the government was unable or unwilling to control.” Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (quoting

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.

2 Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)). Their forfeiture of

such an argument is dispositive of their claims for asylum and withholding of

removal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013). In

any event, substantial evidence—including Meza-Vasquez’s own testimony that

the Honduran police acted every time she filed a police report and ultimately

arrested one of the individuals responsible for the threats she experienced in

Honduras—supports the BIA’s determination. See Hussain v. Rosen, 985 F.3d 634,

648 (9th Cir. 2021) (“[A] country’s government is not ‘unable or unwilling’ to

control violent nonstate actors when it demonstrates efforts to subdue said groups.”

(citation omitted)); cf. Bringas-Rodriguez, 850 F.3d at 1063 (explaining that

“evidence of how the police responded to the petitioner’s requests for protection”

is relevant to determine whether the government is unable or unwilling to control

persecution).

2. Substantial evidence therefore also supports the BIA’s determination

that Petitioners do not qualify for CAT relief, as they failed to demonstrate that a

Honduran public official would acquiesce in Meza-Vasquez’s torture. See Umana-

Escobar v. Garland, 69 F.4th 544, 553 (9th Cir. 2023) (explaining that the

government did not acquiesce to torture when it investigated and prosecuted the

petitioner’s family’s persecutors); cf. Xochihua-Jaimes v. Barr, 962 F.3d 1175,

1183 (9th Cir. 2020) (“To be eligible for relief under CAT, an applicant bears the

3 burden of establishing that she will more likely than not be tortured with the

consent or acquiescence of a public official if removed to her native country.”).

3. The BIA did not err when it determined that Petitioners’ claims were

“not sufficient to establish that sua sponte reopening is warranted.”1 When the BIA

denies sua sponte reopening, we have jurisdiction “for the limited purpose of

reviewing the reasoning behind the decision[] for legal or constitutional error.” Cui

v. Garland, 13 F.4th 991, 1001 (9th Cir. 2021) (quoting Bonilla v. Lynch, 840 F.3d

575, 588 (9th Cir. 2016)). But Petitioners identify no such errors. Although

Petitioners fault the BIA for failing to expressly describe their motion to reopen as

“unopposed” even though the government did not file a response, see 8 C.F.R.

§ 1003.2(g)(3), they do not explain how this constitutes a legal error or why it

excuses the untimeliness of their petition.

Petitioners also fault the BIA for characterizing the Special Immigrant

Juvenile Status (SIJS) applications for Meza-Vasquez’s children as “new relief”

even though the applications were filed before the prior BIA decision. But this

objection amounts to, at most, a factual dispute regarding the procedural timeline.

Because Petitioners do not identify any legal or constitutional error, and we find

1 On appeal, Petitioners do not challenge the BIA’s denial of their motion to reopen as untimely. Such an argument is therefore forfeited. See Lopez-Vasquez, 706 F.3d at 1079–80.

4 none here, we lack jurisdiction to further review the BIA’s denial of sua sponte

reopening.

PETITIONS DENIED.