Roberto Carriedo-Rosas v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 31 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERTO CARRIEDO-ROSAS, No. 16-73927

Petitioner, Agency No. A097-818-065

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

Respondent.

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

Submitted August 10, 2022** Seattle, Washington

Before: BERZON, CHRISTEN, and FORREST, Circuit Judges.

Petitioner Roberto Carriedo-Rosas, a native and citizen of Mexico, seeks

review of his 2004 expedited removal order for violation of his due process rights.

He also seeks review of an Immigration Judge’s (IJ) finding that he failed to establish

a reasonable fear of persecution or torture, and he argues that the IJ deprived him of

* 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). due process by declining to conduct a new hearing on remand from this court. We

review an IJ’s determination that an alien did not establish a reasonable fear of

persecution or torture for substantial evidence, reversing only where “any reasonable

adjudicator would be compelled to conclude to the contrary.” Orozco-Lopez v.

Garland, 11 F.4th 764, 774 (9th Cir. 2021). We review legal claims, constitutional

questions, and jurisdictional questions de novo. Guerrier v. Garland, 18 F.4th 304,

308 (9th Cir. 2021); Orozco-Lopez, 11 F.4th at 774. We dismiss the petition in part

for lack of jurisdiction and deny in part.

1. Underlying Expedited Removal Order. We lack jurisdiction to review

collateral attacks on underlying expedited removal orders absent three narrow

exceptions that may be asserted only in a habeas proceeding. 8 U.S.C.

§ 1252(a)(2)(A), (e); Guerrier, 18 F.4th at 308, 313. Here, Carriedo-Rosas has not

sought review of his underlying expedited removal order through a habeas petition,

nor has he challenged it on any of the grounds permitted by statute. Accordingly, we

lack jurisdiction and dismiss Carriedo-Rosas’s challenge to his underlying expedited

removal order.1

2. Reasonable Possibility of Persecution. In the proceedings on Carriedo-

Rosas’s reinstated removal order, the IJ determined that Carriedo-Rosas failed to

1 Because we may not address the merits of Carriedo-Rosas’s argument, we deny his Motion to Supplement Record on Appeal.

2 establish a reasonable possibility of persecution “because of” a protected ground.

See Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017) (“A person seeking

withholding of removal must prove not only that his life or freedom will be

threatened in his home country, but also that the threat is ‘because of’ one of the five

listed reasons.”).

To the extent Carriedo-Rosas has not waived this issue by failing to address it

in his opening brief, see Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir.

2013), it fails on the merits. An isolated verbal altercation with a neighbor and

extortion of a family member fall short of establishing past persecution, and fear of

generalized violence and being targeted for having lived in the United States are

insufficient to establish a fear of future persecution on account of a protected ground.

See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir. 2019). Moreover, Carriedo-

Rosas’s proposed social group is not legally cognizable. Delgado-Ortiz v. Holder,

600 F.3d 1148, 1151–52 (9th Cir. 2010) (per curiam) (holding that “returning

Mexicans from the United States” was not a cognizable social group for purposes of

establishing a protected ground). Accordingly, we find no error in the IJ’s

determination that Carriedo-Rosas has not shown a reasonable possibility of

persecution because of a protected ground.

3. Reasonable Possibility of Torture. The IJ found that Carriedo-Rosas had

not suffered past torture and there was no “evidence [he] would be the victim of

3 future torture by the Mexican government or with the government’s acquiescence.”

Carriedo-Rosas failed to address this determination in his opening brief and has thus

waived any challenge to it. See Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir.

2008).

But, regardless, this argument fails on the merits. There is no evidence of past

torture in this case; Carriedo-Rosas lived in Mexico between 2006 and 2007 without

facing any harm, let alone torture. The record demonstrates that Carriedo-Rosas

fears only general crime and violence, which does not meet the legal standard for

relief under the Convention Against Torture. See Delgado-Ortiz, 600 F.3d at 1152.

The record, including the testimony of Carriedo-Rosas’s expert witness, also

demonstrates that Carriedo-Rosas could safely relocate within Mexico, which

undermines a finding of future torture. See Maldonado v. Lynch, 786 F.3d 1155,

1164 (9th Cir. 2015); 8 C.F.R. § 1208.16(c)(3)(ii). Accordingly, the IJ’s finding that

Carriedo-Rosas has not shown a reasonable possibility of torture is supported by

substantial evidence.

4. Due Process. Finally, Carriedo-Rosas argues that he was denied due

process when the IJ declined to conduct an additional evidentiary hearing at which

he could testify on remand from this court in 2016. To prevail on a due process

claim, a petitioner must show a due process violation and that the violation caused

prejudice, which means the due process violation may have adversely affected the

4 outcome of the proceedings. See Flores-Rodriguez v. Garland, 8 F.4th 1108, 1113

(9th Cir. 2021). When an IJ reviews an asylum officer’s reasonable fear

determination, “due process does not mandate the right to present new evidence . . .

when a litigant has been afforded a reasonable opportunity to present evidence.”

Alvarado-Herrera v. Garland, 993 F.3d 1187, 1195 (9th Cir. 2021).

Here, Carriedo-Rosas received a full reasonable-fear hearing before the IJ

when his original removal order was reinstated in 2014. He was represented by

counsel, testified on his own behalf, and presented an expert witness. Carriedo-Rosas

has not challenged the fairness of the 2014 hearing or demonstrated that additional

testimony from him was required on remand. See Bartolome v. Sessions, 904 F.3d

803, 813 (9th Cir. 2018) (“[A]lthough an IJ may allow an alien to submit evidence

to support his or her claim, the IJ is not required to do so” in a reasonable fear review

hearing. (citation omitted)). Nor has he demonstrated prejudice by showing that

denial of an additional hearing may have affected the outcome of the proceedings.

See Flores-Rodriguez, 8 F.4th at 1113. Accordingly, we reject Carriedo-Rosas’s

assertion that he was denied due process.

DISMISSED IN PART; DENIED IN PART.