Nelvin Garcia-Medina v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2022
• Docket: 17-71923
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NELVIN GARCIA-MEDINA, No. 17-71923

Petitioner, Agency No. A205-869-879

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

Respondent.

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

Submitted August 29, 2022** Seattle, Washington

Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.

Petitioner Nelvin Garcia-Medina, a native and citizen of Honduras, petitions

for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal

from the Immigration Judge’s (IJ) decision denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (CAT).

We have jurisdiction pursuant to 8 U.S.C. § 1252 over a portion of

Petitioner’s claims. Accordingly, we dismiss in part and deny in part the petition

for review.

1. We lack jurisdiction over Petitioner’s claim for CAT protection. “A

conclusory statement does not apprise the BIA of the particular basis for the

petitioner’s claim nor meaningfully challenge the IJ’s decision on appeal.” Amaya

v. Garland, 15 F.4th 976, 986 (9th Cir. 2021) (cleaned up). Petitioner’s brief to the

BIA, filed by counsel, is devoid of any argument in support of the conclusory

statement that the IJ “erred in denying Mr. Garcia-Medina’s applications by

making erroneous findings of fact concerning . . . whether it is likely the

respondent will suffer torture in Honduras.” This general challenge “does not

apprise the BIA of the particular basis for [Petitioner’s] claim that the IJ erred; it

merely asserts that the IJ erred.” Rizo v. Lynch, 810 F.3d 688, 692 (9th Cir. 2016).

Petitioner’s CAT claim is therefore unexhausted, and we are barred from

considering its merits. 8 U.S.C. § 1252(d)(1); see Amaya, 15 F.4th at 986 (holding

petitioner’s due process claim was unexhausted because “[n]either his notice of

appeal nor his attachment thereto made a clear, non-conclusory argument in

support of his claim”); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).

2. Petitioner’s claims for asylum and withholding of removal fail on the

2 merits.1 Substantial evidence supports the BIA’s determination that Petitioner

failed to establish eligibility for asylum because he showed no nexus between any

past or feared future harm and a protected ground. See Sharma v. Garland, 9 F.4th

1052, 1059–60 (9th Cir. 2021). Applying the deferential substantial evidence

standard of review, the record does not compel the conclusion that the IJ’s findings

were erroneous with respect to Petitioner’s proffered particular social groups.2 See

Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). Petitioner’s claim, at

its core, is based on fear of crime and general lawlessness in Honduras, which is

insufficient to establish eligibility for asylum. See 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 random violence by gang members bears no nexus

to a protected ground.”); see also Macedo Templos v. Wilkinson, 987 F.3d 877, 883

(9th Cir. 2021). Therefore, Petitioner is not a “refugee,” as that term is defined in

the Refugee Act of 1980. 8 U.S.C. § 1101(a)(42)(A).

Further, because we conclude that Petitioner did not meet the lower burden

of proof for his asylum claim, he “necessarily fails to carry the greater burden of

1 Because it is unnecessary to this disposition, we assume without deciding that Petitioner established the changed circumstances exception to excuse his untimely asylum application filing. Thus, we address and deny this claim on the merits based on the administrative record before us. 2 We deem Petitioner’s political opinion argument unexhausted because he did not meaningfully present it to the BIA. See Barron, 358 F.3d at 677.

3 establishing eligibility for withholding of removal.” Yali Wang, 861 F.3d at 1009.

DISMISSED in part and DENIED in part.