Miguel Gongora-Castaneda v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 9, 2022
• Docket: 20-70709
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 9 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIGUEL ANGEL GONGORA- No. 20-70709 CASTANEDA, AKA Miguel Congora- Castalleda, AKA Miguel Jimenez-Jimenez, Agency No. A201-237-532

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted October 21, 2021 San Francisco, California

Before: MURGUIA, Chief Judge, and WALLACE and BEA, Circuit Judges.

Mr. Gongora-Castaneda (“Petitioner”) petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision to dismiss his appeal and affirm an

immigration judge’s (“IJ”) order denying his applications for asylum, withholding

of removal, and protection under the Convention Against Torture (“CAT”), and the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. BIA’s decision to deny his motion to reopen. Petitioner contends that the IJ lacked

jurisdiction because the Notice to Appear (“NTA”) he received omitted the address

of the immigration court (“IC”) at which his hearing was to take place; that the

BIA erred in denying Petitioner’s claims to asylum, withholding of removal, and

protection under CAT; and that the BIA erred in denying his motion to remand for

ineffectiveness of counsel. We have jurisdiction under 8 U.S.C. § 1252.1

1. Petitioner’s claim that, because the NTA omitted the IC’s address, the IJ

lacked jurisdiction over his case, is foreclosed by Aguilar Fermin v. Barr, 958 F.3d

887, 894–95 (9th Cir. 2020). Petitioner had actual knowledge of the address

through follow-up notices and appeared at the hearing.

2. Petitioner, a homosexual man, “fears he would be harmed due to his

sexual orientation in Mexico.” The BIA found that Petitioner was ineligible for

asylum and withholding of removal because the Government rebutted Petitioner’s

presumption of future persecution (based on past persecution) with evidence that

Petitioner could relocate safely within Mexico. Petitioner contends this finding is

“not supported by the record,” and highlights evidence tending to show in general

that homosexual persons have experienced threats and violence in Mexico;

Mexican authorities have not adequately prosecuted some hate crimes against

1 Because the parties are familiar with the facts, we do not repeat them here, except where necessary to provide context for our ruling.

2 homosexual persons; and Mexican police have mistreated homosexual persons.

But, much of the evidence Petitioner cites describes general conditions

across Mexico. Moreover, the record contains some evidence supportive of a

finding that Petitioner could be safe in some parts of Mexico. And, importantly,

Petitioner himself conceded that he “d[id]n’t know” “why [he] couldn’t go live

safely in an area like Mexico City or somewhere else.” 2

Based on this record, we cannot say that “any reasonable adjudicator would

be compelled to conclude” that Petitioner could not relocate safely within Mexico.

B.R. v. Garland, 4 F.4th 783, 790 (9th Cir. 2021). Thus, substantial evidence

supports the BIA’s findings that Petitioner is ineligible for asylum and withholding

from removal. See Silva v. Garland, 993 F.3d 705, 719 (9th Cir. 2021) (noting that

a petitioner who fails to establish a “‘reasonable possibility’ of future persecution”

necessarily fails “‘to satisfy the more stringent standard for withholding of

removal.’”).

3. Because substantial evidence supports the BIA’s finding that Petitioner

2 Citing Xochihua-Jaimes v. Barr, 962 F.3d 1175 (9th Cir. 2020), and Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017), Petitioner argues the BIA must identify a specific safe location before finding that internal relocation rebuts a presumption of future persecution. But, unlike here, in Xochihua-Jaimes, “[n]either the IJ nor the BIA cited any affirmative ‘[e]vidence that [Petitioner] could relocate to a part of [Mexico].’” 962 F.3d at 1186 (emphasis added). And, in Barajas-Romero, this Court remanded because the BIA “applied the incorrect standard” that the noncitizen “had the burden of proving that he could not safely relocate.” 846 F.3d at 364. The BIA did not make that error here.

3 could safely relocate within Mexico, and Petitioner does not dispute the IJ’s

finding that “there is no evidence” that Petitioner’s father, neighbor, or classmates

“would target [Petitioner] for harm in the future,” substantial evidence also

supports the BIA’s holding that Petitioner is ineligible for protection under CAT.

4. A motion to reopen based on ineffectiveness of counsel generally must

meet the procedural requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA

1988), Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003), unless “the

ineffective assistance of counsel is ‘clear and obvious’ from the record,” United

States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th Cir. 2014). Petitioner “did not

attempt to comply with the procedural requirements,” but claims his counsel’s

ineffectiveness before the IJ was “clear and obvious.”

The BIA did not abuse its discretion when it denied Petitioner’s motion to

reopen based on ineffectiveness of counsel as to voluntary departure. Petitioner

has not made out an affirmative case of eligibility for relief under 8 U.S.C.

§ 1229c(b)(1).

The BIA also did not abuse its discretion when it denied Petitioner’s motion

to reopen based on ineffectiveness of counsel concerning eligibility for

humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii)(A) (“Subsection A”).

Although Petitioner experienced disturbing and cruel mistreatment as a child, the

record does not compel a finding contrary to the BIA’s holding that these incidents

4 do not demonstrate prima facie entitlement to relief under Subsection A. See, e.g.,

Kumar v. INS, 204 F.3d 931, 934–35 (9th Cir. 2000) (finding that considerable

abuse did not rise to “atrocious persecution”); Hanna v. Keisler, 506 F.3d 933,

936-37, 939 (9th Cir. 2007) (same).

Problematically, the BIA appears not to have considered Petitioner’s claim

that his previous counsel was ineffective for failing to seek humanitarian asylum

under 8 C.F.R. § 1208.13(b)(1)(iii)(B) (“Subsection B”). The BIA’s denial of the

motion was therefore an abuse of discretion as it related to Subsection B. See

Hanna, 506 F.3d at 939; Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th

Cir. 2004) (BIA abused discretion when it “neither reached” one “aspect of

petitioners’ claim, nor explained the omission.”). Although Petitioner’s claim to

eligibility for relief under Subsection B may stand in tension with the BIA’s

holding that Petitioner could safely relocate within Mexico, we cannot affirm the

BIA on grounds it failed to consider, and so must remand this sole claim. See

Sanchez Rosales v. Barr, 980 F.3d 716, 719 (9th Cir. 2020) (If “the BIA’s decision

cannot be sustained upon its reasoning, we must remand.”).

5. The petition is GRANTED with respect to Petitioner’s claim that the

BIA abused discretion in denying Petitioner’s motion to remand for ineffectiveness

of counsel premised on the failure to seek humanitarian asylum only under 8

C.F.R. § 1208.13(b)(1)(iii)(B). We VACATE and REMAND only that holding

5 for the BIA to consider Petitioner’s claim. The petition is otherwise DENIED.