Ricardo Mercado-Guillen v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2020
• Docket: 17-72308
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO MERCADO GUILLEN, No. 17-72308

Petitioner, Agency No. A200-231-978

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 9, 2020** San Francisco, California

Before: THOMAS, Chief Judge, and SCHROEDER and BRESS, Circuit Judges.

Ricardo Mercado Guillen (“Mercado”) appeals the order of an Immigration

Judge (“IJ”) reinstating a prior order of removal and affirming an asylum officer’s

determination that Mercado did not demonstrate a reasonable possibility of

persecution or torture in Mexico based on a protected ground. We have

* 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). jurisdiction under 8 U.S.C. § 1252 because “[a]n IJ’s negative determination

regarding the alien’s reasonable fear makes the reinstatement order final, see 8

C.F.R. § 208.31(g)(1), and thus subject to review under 8 U.S.C. §

1252.” Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). In this

situation, “the alien may not appeal the decision to the Board of Immigration

Appeals,” and this court thus reviews the IJ’s determination directly. Id. at 832.

We assume the parties’ familiarity with the facts and deny the petition.

1. Mercado argues his due process rights were violated because

Immigration and Customs Enforcement (“ICE”) did not consider his letters

requesting that the agency exercise its discretion and decline to reinstate removal

proceedings, based on Mercado’s family situation and limited criminal history.

We review questions of law, including constitutional questions, de novo. Garcia

de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1136 (9th Cir. 2008).

Mercado’s due process challenge is without merit. There is insufficient

evidence that ICE received Mercado’s letters. Regardless, the record indicates that

the asylum agent was aware of the most pertinent information in Mercado’s letters.

The government also represents that it has since reviewed the letters and is

declining to exercise its discretion in the manner requested. Under these

circumstances, we cannot conclude that ICE’s alleged failure to consider

Mercado’s letters was prejudicial. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.

2 2000). And for this reason, Mercado’s reliance on Villa-Anguiano v. Holder, 727

F.3d 873 (9th Cir. 2013), is inapt. Villa-Anguiano also involved a defect in the

original removal order, which is not the case here. Id. at 879–80.

2. Mercado next challenges the IJ’s negative reasonable fear

determination. We review this determination for substantial evidence and must

“uphold the IJ’s conclusion that [petitioner] did not establish a reasonable fear of

torture [or persecution] unless, based on the evidence, ‘any reasonable adjudicator

would be compelled to conclude to the contrary.’” Andrade-Garcia, 828 F.3d at

833 (quoting Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)). An alien

can seek to avoid removal based on a reinstated removal order where the alien has

shown a “reasonable fear of persecution or torture,” which requires “establish[ing]

a reasonable possibility that he or she would be persecuted on account of his or her

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

opinion, or a reasonable possibility that he or she would be tortured in the country

of removal.” 8 C.F.R. § 208.31(c); see also Andrade-Garcia, 828 F.3d at 835.

Substantial evidence supports the IJ’s negative reasonable fear

determination. Mercado’s testimony indicated that Mercado feared economically-

motivated crime that exists generally in Mexico—which does not constitute

grounds for relief. See, e.g., Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir.

2019). While Mercado made some statements indicating he feared harm based on

3 his familial relation to his sister, he denied this at times and also explained that

nobody in his family had received threats since his sister returned to Mexico. The

IJ thus did not err in concluding that Mercado had failed to show a reasonable fear

of persecution or torture based on a protected ground. See 8 C.F.R. § 208.31(c).

We also reject as unsupported Mercado’s contentions that the IJ applied an

improper legal standard, or that the IJ decision contained insufficient explanation.

PETITION DENIED.