Pena-Lopez v. Blanche

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2026
• Docket: 25-2692
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ULISES PENA-LOPEZ, No. 25-2692 Agency No. Petitioner, A206-090-631 v. MEMORANDUM* TODD BLANCHE, Acting Attorney General,

Respondent.

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

Argued and Submitted May 21, 2026 Seattle, Washington

Before: HAWKINS, CLIFTON, and R. NELSON, Circuit Judges.

Petitioner Ulises Pena-Lopez, a native and citizen of Mexico, petitions for

review of two orders from the Department of Homeland Security: (1) an order

reinstating his prior removal order, and (2) a subsequent negative reasonable-fear

determination. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We review “the IJ’s determination that the alien did not establish a reasonable

fear of persecution or torture for substantial evidence.” Bartolome v. Sessions, 904

F.3d 803, 811 (9th Cir. 2018) (citation omitted). We thus uphold the negative

reasonable-fear determination unless “any reasonable adjudicator would be

compelled to conclude to the contrary.” Id. (citation omitted). We review Pena-

Lopez’s procedural challenges to the removal reinstatement proceedings de novo.

Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008).

1. To succeed on his claim for reasonable fear of persecution, Pena-Lopez

had to establish a reasonable possibility that he “would be persecuted on account of

his . . . race, religion, nationality, membership in a particular social group or political

opinion.” 8 C.F.R. § 208.31(c). Pena-Lopez stated that he had never been harmed

or threatened, nor does he fear being harmed or threatened, on account of his race,

religion, nationality, or political opinion. A petitioner’s denial that he feared harm

on a protected ground is enough to support a negative reasonable-fear determination

based on persecution. Alvarado-Herrera v. Garland, 993 F.3d 1187, 1196 (9th

Cir. 2021). When asked whether he had been harmed or threatened or fears being

harmed or threatened “because of some characteristic that [] that makes [him]

different from other people,” he responded “yes, for being an illegal immigrant,”

which is not an established protected ground.

2 25-2692 2. Substantial evidence supports the IJ’s conclusion that Pena-Lopez

failed to establish a reasonable possibility that any future torture would be committed

with government acquiescence. Pena-Lopez’s belief that the police told the cartel

about the report relied on one piece of evidence from the interview with the asylum

officer: after he reported the harm to the police, he heard a police officer in the back

call someone and say: “There is a guy … pointing the finger at you.” Pena-Lopez

heard nothing else after this statement because he instantly fled, further testifying

that “all the police left the station out of fear.” This is a far cry from Alvarado-

Herrera, where government acquiescence was shown by attacks from gang members

who “dressed in police uniforms and displayed police badges.” 993 F.3d at 1197.

And while “[p]olice unwillingness to address cartel violence constitutes

acquiescence,” Hermosillo v. Garland, 80 F.4th 1127, 1133 (9th Cir. 2023), it is

unclear if this experience meets that standard, given Pena-Lopez fled once he heard

the police call an unknown person and say “[t]here is a guy … pointing the finger at

you.” The officer’s conclusion that this testimony alone was insufficient to establish

acquiescence is reasonable. Under substantial evidence, more is needed to compel

any reasonable adjudicator to the contrary.

3. Pena-Lopez has not shown sufficient procedural defects to warrant

relief. To determine whether Pena-Lopez was subject to reinstatement, the asylum

officer had to determine (1) his identity, (2) whether he was subject to a prior

3 25-2692 removal order, and (3) whether he unlawfully reentered the United States. 8 C.F.R.

§ 241.8(a). Once those facts were determined by the officer, Pena-Lopez could

contest the determination, 8 C.F.R. § 241.8(b), which he did not do.

Pena-Lopez’s challenge raises “procedural defects in [his] particular case[].”

Morales-Izquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en banc). He

argues that the officers’ lack of a signed warrant, alleged beating during detention,

and the absence of counsel during the reinstatement hearing deprived him of “a

meaningful opportunity to address the proposed reinstatement of his removal order.”

Villa-Anguiano v. Holder, 727 F.3d 873, 881 (9th Cir. 2013).

Pena-Lopez must “show prejudice to obtain relief for a due process violation

based on denial of any right to counsel that may exist in reinstatement proceedings.”

Ruiz v. Bondi, 172 F.4th 673, 681 (9th Cir. 2026). He “must demonstrate that there

were plausible scenarios in which the outcome of the proceedings would have been

different had his counsel been present.” Id. (cleaned up).

Pena-Lopez has not contested his identity at any point in these proceedings.

See 8 C.F.R. § 241.8(a)(2) (“In disputed cases, verification of identity shall be

accomplished by a comparison of fingerprints between those of the previously

excluded, deported, or removed alien. . . .”) (emphasis added). At all stages, he has

identified himself as Ulises Pena-Lopez, the same as in the 2013 removal order.

Pena-Lopez refused to sign or make a statement contesting the determination after

4 25-2692 being presented with the opportunity to do so. In removal proceedings, “[t]he officer

is free to afford an alien a reasonable opportunity to consult counsel and submit a

response if the alien indicates an intent to do so.” Ruiz, 172 F.4th at 681. Pena-

Lopez did not make a statement challenging the determination, even after meeting

with his attorney the following morning. Pena-Lopez’s argument is “too speculative

to establish the requisite prejudice.” Id. (quoting Bingham v. Holder, 637 F.3d 1040,

1047 (9th Cir. 2011)).

PETITION DENIED.1

1 All pending motions are DENIED.

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