Misael Sanchez-Lopez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 2023
• Docket: 18-72767
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MISAEL SANCHEZ-LOPEZ, No. 18-72767

Petitioner, Agency No. A095-766-763

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 7, 2023** Pasadena, California

Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges.

Petitioner Misael Sanchez-Lopez, a native and citizen of Mexico, petitions

this court to review the Board of Immigration Appeals (“BIA”) decision denying his

* 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 Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252.

The BIA’s denial of a motion to reopen is reviewed under an abuse of discretion

standard. Greenwood v. Garland, 36 F.4th 1232, 1235 (9th Cir. 2022). We must

uphold the BIA’s decision unless it is “arbitrary, irrational, or contrary to law.” Id.

The BIA’s factual findings are reviewed for substantial evidence. Dong v. Garland,

50 F.4th 1291, 1296 (9th Cir. 2022).

After applying these standards to the record before us, we reject all of

Petitioner’s arguments for the following reasons.

First, Mr. Sanchez-Lopez argues the immigration court lacked subject-matter

jurisdiction over his removal proceedings under Pereira v. Sessions, 138 S. Ct. 2105

(2018), because his Notice to Appear (“NTA”) did not specify the time and place of

his hearing before the immigration judge. This challenge is unexhausted because

Petitioner failed to raise it before the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may

review a final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right[.]”); Ruiz-Colmenares v. Garland, 25 F.4th

742, 748 (9th Cir. 2022) (“We lack jurisdiction to consider Petitioner’s argument

because it was not raised before the agency.”). Moreover, this argument is foreclosed

by our en banc holding in United States v. Bastide-Hernandez, 39 F.4th 1187 (9th

2 18-72767 Cir. 2022).1 In Bastide-Hernandez, we held that a defective NTA does not deprive

immigration courts of subject-matter jurisdiction. Id. at 1191. Thus, the immigration

court had subject-matter jurisdiction over Mr. Sanchez-Lopez’s proceedings despite

any defects in the NTA.

Second, Mr. Sanchez-Lopez argues he is eligible for asylum and withholding

of removal because past threats or harm directed at members of his extended family

establish he will be persecuted in Mexico if removed. A motion to reopen must

ordinarily be filed within ninety days of the final order of removal. 8 U.S.C. §

1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). However, the 90-day deadline

does not apply if the motion to reopen is (1) to apply for asylum under § 208 of the

Immigration and Nationality Act (the “Act”), withholding of removal under §

241(b)(3) of the Act, or withholding of removal under the Convention Against

Torture (“CAT”), and (2) based on evidence of material changes to country

conditions arising in the country to which removal has been ordered, and if such

evidence was material and not available and would not have been discovered or

presented at the previous proceeding. 8 U.S.C. § 1229a(c)(7)(C)(ii). To prevail, that

new evidence, when considered together with the evidence presented at the original

1 Pereira’s analysis is specific to the “stop-time” rule, which defines how continuous residence and continuous physical presence are calculated and is not at issue in this case. Karingithi v. Whitaker, 913 F.3d 1158, 1160–61 (9th Cir. 2019) (holding that Pereira’s analysis is “distinct from the jurisdictional question” at issue).

3 18-72767 hearing, must establish prima facie eligibility for the relief sought. Feng Gui Lin v.

Holder, 588 F.3d 981, 986 (9th Cir. 2009).

Here, Mr. Sanchez-Lopez did not demonstrate prima facie eligibility for

asylum under the Act because he failed to present evidence showing a nexus between

his alleged fear of persecution and membership in a particular social group. While

Mr. Sanchez-Lopez alleged that he feared returning to Mexico because of violence

and extortion experienced by his extended family members, he presented no

evidence demonstrating that he would be targeted in Mexico because of his family

ties. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890–91 (9th Cir. 2021) (rejecting

a petitioner’s claim for asylum because the record did not contain evidence of a

nexus between his alleged persecution and membership in his family). Nor do Mr.

Sanchez-Lopez’s alleged fears of persecution based on general country conditions

in Mexico, specifically crime and violence from cartel members and kidnappers,

establish prima facie eligibility for relief. A petitioner’s “desire to be free from

harassment by criminals motivated by theft or random violence by gang members

bears no nexus to a protected ground.” Flores-Vega v. Barr, 932 F.3d 878, 887 (9th

Cir. 2019) (quoting Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)); see also

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (holding that evidence was

not material because it failed to demonstrate that the petitioner’s situation was

appreciably different from the dangers faced by other citizens).

4 18-72767 Because Petitioner failed to establish eligibility for asylum, he also necessarily

fails to meet the more stringent “clear probability” standard for withholding of

removal under § 241(b)(3) of the Act. See Sharma v. Garland, 9 F.4th 1052, 1066

(9th Cir. 2021). Thus, the BIA did not abuse its discretion by denying Mr. Sanchez-

Lopez’s untimely motion to reopen because he did not demonstrate prima facie

eligibility for relief.

Finally, the BIA also properly concluded that Mr. Sanchez-Lopez’s evidence

failed to establish a prima facie case for CAT protection. Petitioner alleges that

certain extended family members have suffered violence and extortion and that

Mexico struggles with gang violence and corruption. To qualify for CAT protection,

a movant bears the burden of proving that it is more likely than not that he would be

tortured by or with the acquiescence of the government if removed. See Santos-

Ponce, 987 F.3d at 891. The BIA did not err by finding that the evidence presented

fails to establish that it is more likely than not that Mr. Sanchez-Lopez would face

torture upon his return to Mexico. See id.; Delgado-Ortiz v. Holder, 600 F.3d 1148,

1152 (9th Cir. 2010) (holding that “generalized evidence of violence and crime” is

“insufficient” to show a particularized likelihood of torture).

On this record, the BIA’s decision to deny Petitioner’s motion to reopen was

not arbitrary, irrational, or contrary to law.

The petition for review is DENIED IN PART; DISMISSED IN PART.

5 18-72767 Petitioner’s Motion for Leave to File Supplemental Brief (Dkt. 28) is

DENIED.

Petitioner’s Motion for Leave to File Petitioner’s Revised [Oversized]

Supplemental Brief (Dkt. 41) is DENIED.

Respondent’s Motion to Strike Substitute Brief (Dkt. 43) is DENIED as moot.

6 18-72767