Oscar Jimenez-Ornelas v. Jeffrey Rosen

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 11, 2021
• Docket: 18-70576
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 11 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR FRANCISCO JIMENEZ- No. 18-70576 ORNELAS, Agency No. A205-158-200 Petitioner,

v. MEMORANDUM*

JEFFREY A. ROSEN, Acting Attorney General,

Respondent.

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

Submitted December 11, 2020** San Francisco, California

Before: W. FLETCHER, IKUTA, and VANDYKE, Circuit Judges.

Oscar Francisco Jimenez-Ornelas (“Jimenez”) petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal of an

Immigration Judge’s (“IJ”) decision denying his request for cancellation of removal

and denying his petition for asylum, withholding of removal, and protection under

* 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 Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We deny the petition for review.

We review the BIA’s determination of purely legal questions de novo. Singh

v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000). The BIA’s factual findings are

reviewed for substantial evidence. Rayamajhi v. Whitaker, 912 F.3d 1241, 1243

(9th Cir. 2019). Under this deferential standard, factual findings are treated as

“conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Singh v. Lynch, 802 F.3d 972,

974–75 (9th Cir. 2015). Accordingly, in order to reverse the BIA’s finding under

substantial evidence review, “we must find that the evidence not only supports that

conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

1. The BIA properly applied the BIA’s January 2013 decision in Cortes Medina

to Jimenez’s September 16, 2013 conviction for indecent exposure under California

Penal Code § 314.1. Matter of Alfonso Cortes Medina, 26 I. & N. Dec. 79 (B.I.A.

2013). “Under Brand X, we must defer ... to the BIA’s decision in Cortes Medina”

construing a crime involving moral turpitude (“CIMT”) to include indecent

exposure. Betansos v. Barr, 928 F.3d 1133, 1141–42 (9th Cir. 2019) (citing Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)).

Because the indecent exposure conviction is Jimenez’s second CIMT, he is

2 ineligible for cancellation of removal. Id. at 1136 (citing 8 U.S.C.

§ 1229b(b)(1)(B), (C)).

Jimenez argues that the Montgomery Ward & Co. v. FTC, 691 F.2d 1322,

1333 (9th Cir. 1982) factors regarding retroactivity weigh in favor of applying our

2010 opinion in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), not Cortes Medina.

But Jimenez committed and was convicted of indecent exposure months after

Cortes Medina redefined a CIMT to include his offense. Therefore, the

Montgomery Ward factors do not apply here, and the IJ and BIA properly concluded

Jimenez was ineligible for cancellation of removal due to his second CIMT

conviction.

2. Jimenez’s asylum and withholding of removal claims fail because substantial

evidence supports the BIA’s conclusion that Jimenez failed to show that he would

be persecuted on account of, or because of, his political opinion or membership in

a particular social group (“PSG”). Specifically, Jimenez contends that he will be

persecuted on account of his political opinion of “oppos[ing] cartel activities,

lifestyle and cartels’ deleterious effect on Mexican society.” But neither his

briefing nor the record establishes how someone who holds this opinion would be

singled out for persecution any more than a general member of the Mexican public,

most of whom one would expect would share that opinion. See Sangha v. INS, 103

F.3d 1482, 1490 (9th Cir. 1997).

3 Substantial evidence also supports the BIA’s conclusion that Jimenez failed

to show how his proposed PSG—“men who have been long-time residents of the

United States who have become Americanized and are deported to Mexico”—was

particular and socially distinct, as we have already determined that this PSG fails.

See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29 (9th Cir. 2016). That

proposed PSG is not particular because it would include virtually every male being

deported from the United States back to Mexico. See Reyes v. Lynch, 842 F.3d

1125, 1135 (9th Cir. 2016) (requiring particular social groups to be discrete, not

amorphous). Jimenez also failed to show that this group is socially distinct or that

Mexican society recognizes this proposed PSG as a distinct group. See Diaz-Torres

v. Barr, 963 F.3d 976, 980–81 (9th Cir. 2020). He merely states that “deportees

from the US are stigmatized in Mexican society,” citing no supporting record

evidence, and speculates how deportees from the United States may face challenges

when they return to Mexico. And even assuming Jimenez could have met the

particularity and socially distinct requirements, he failed to demonstrate that

individuals are persecuted on account of being members in this group.1

1 Because Jimenez “fail[ed] to satisfy the lower standard of proof required to establish eligibility for asylum,” substantial evidence supports the BIA’s conclusion that he “fail[ed] to demonstrate eligibility for withholding of deportation.” Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).

4 3. Jimenez is not entitled to protection under CAT. To qualify for CAT

protection, Jimenez bears the burden of proving “that ‘it is more likely than not

that … [he] would be tortured if removed to the proposed country of removal.’”

Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004) (citing 8 C.F.R.

§ 208.16(c)(2)). In addition to establishing a clear probability of torture upon

removal, Jimenez must show the torture would be “inflicted by or at the instigation

of or with the consent or acquiescence of a public official or other person acting

in an official capacity.” 8 C.F.R. § 1208.18(a)(1). Even though the IJ found that

he had suffered past torture because of an isolated carjacking incident in Mexico,

that finding alone is not enough to show that Jimenez would be tortured in the

future. See Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019). Further, the

record contains no evidence that there was government involvement or

acquiescence in the carjacking. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836–

37 (9th Cir. 2016). And while Jimenez points to the nationwide reach of cartels,

the potential harm facing individuals deported to Mexico, and evidence of corrupt

local government officials, the record also contains evidence “of government

efforts to combat such corruption as well as vigorous government efforts to

suppress and fight criminal syndicates in Mexico.” Therefore, substantial

5 evidence supports the BIA and IJ’s conclusions that Jimenez failed to show he

would be tortured if deported to Mexico. See id.2

The petition for review is DENIED.

2 Jimenez also claims that the police did not follow up with him about the carjacking incident, but “general ineffectiveness on the government's part to investigate and prevent crime will not suffice to show acquiescence” for purposes of CAT protection. Andrade-Garcia, 828 F.3d at 836.