Monica Valladares Ortiz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 15-70928
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MONICA VALLADARES ORTIZ, Nos. 15-70928 16-71250 Petitioner, Agency No. A206-909-580 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of Orders of the Board of Immigration Appeals

Submitted June 11, 2019**

Before: WALLACE, FARRIS, and TROTT, Circuit Judges.

Monica Valladares Ortiz, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s (“IJ”) decision denying her application for asylum,

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

* 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). (petition No. 15-70928), and of the BIA’s order denying her motion to reopen

(petition No.16-71250). The IJ determined that the harm and resulting fear she

suffered were not factually related to a ground statutorily protected by the

Immigration and Naturalization Act. Zetino v. Holder, 622 F.3d 1007, 1016 (9th

Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated

by theft or [by] random violence by gang members bears no nexus to a protected

ground.”).

We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s

factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182,

1184-85 (9th Cir. 2006). We review for abuse of discretion the denial of a motion

to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de

novo claims of due process violations. Jiang v. Holder, 754 F.3d 733, 738 (9th

Cir. 2014). We deny the petitions for review.

As to petition No. 15-70928, substantial evidence supports the agency’s

finding that the harms Valladares Ortiz suffered, even considered cumulatively, did

not rise to the level of persecution or relate to a protected ground. See Lim v. INS,

224 F.3d 929, 936 (9th Cir. 2000) (“Threats standing alone ... constitute past

persecution in only a small category of cases, and only when the threats are so

2 15-70928/16-71250 menacing as to cause significant actual suffering or harm.”) (citation and internal

quotation marks omitted). As to her fear of future persecution, substantial

evidence supports the agency’s conclusion that Valladares Ortiz failed to establish

the government of Mexico was unwilling or unable to protect her. See

Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th Cir. 2010) (concluding the record

did not compel the finding that the petitioner would be harmed by forces the

government was unwilling or unable to control). Thus, we deny the petition as to

Valladares Ortiz’s asylum claim.

Because Valladares Ortiz failed to establish eligibility for asylum, in this

case, she did not establish eligibility for withholding of removal. See Zehatye, 453

F.3d at 1190.

Substantial evidence also supports the agency’s denial of CAT relief because

Valladares Ortiz failed to show it is more likely than not that she will be tortured

with the consent or acquiescence of the government of Mexico. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

As to petition No. 16-71250, the BIA did not abuse its discretion in denying

Valladares Ortiz’s untimely motion to reopen where she failed to establish prima

facie eligibility for relief to qualify for an exception to the time limitation for

3 15-70928/16-71250 motions to reopen. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010)

(the BIA may deny a motion to reopen for failure to establish prima facie

eligibility for the relief sought). We reject Valladares Ortiz’s assertion that the

BIA violated her due process rights by denying her motion to reopen. See Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due

process claim).

PETITIONS FOR REVIEW DENIED.

4 15-70928/16-71250