Roberto Quezada-Gonzalez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2023
• Docket: 17-70659
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 24 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO FRANCISCO QUEZADA- No. 17-70659 GONZALEZ, AKA Cuate Quesada, AKA Victor Quesada, AKA Francisco Quezada, Agency No. A206-407-021

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 10, 2023** Pasadena, California

Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.

Roberto Francisco Quezada-Gonzalez petitions this Court for a review of the

Board of Immigration Appeals’s decision affirming the immigration judge’s

* 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). denials of his request for a waiver of inadmissibility for his U visa application and

his requests for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT).

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). For Quezada-

Gonzalez’s U visa claim, we review the Board’s decision. See Guerra v. Barr, 974

F.3d 909, 911 (9th Cir. 2020). For his remaining claims, because the Board

adopted the immigration judge’s decision in its entirety, we review the immigration

judge’s decision directly. See Mutuku v. Holder, 600 F.3d 1210, 1212 (9th Cir.

2010). We review legal conclusions de novo and factual findings for substantial

evidence. See Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).

The Board correctly decided that the immigration judge does not have

authority to consider Quezada-Gonzalez’s request for an inadmissibility waiver for

his U visa application. In Man v. Barr, we addressed the exact same question as

Quezada-Gonzalez presents here: “In removal proceedings commenced against a

non-citizen after the non-citizen has already entered the country, does an

[immigration judge] have the authority to grant the non-citizen a U visa waiver of

inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii)?” 940 F.3d 1354, 1356 (9th

Cir. 2019) (per curiam). And we answered no. Id.

2 For Quezada-Gonzalez’s asylum claim, we are bound by the immigration

judge’s finding that his application is time-barred. See 8 U.S.C. § 1158(a)(2)(B),

(3). Alternatively, the judge correctly decided that Quezada-Gonzalez’s proposed

social group of individuals returning from the United States does not constitute a

protected ground for asylum purposes. See Delgado-Ortiz v. Holder, 600 F.3d

1148, 1151–52 (9th Cir. 2010) (per curiam). For his argument that his family

forms a particular social group, the immigration judge also had substantial

evidence to conclude that he failed to establish such a claim. Under our precedent,

petitioners invoking familial association as a protected ground must show that the

alleged persecutors “specifically sought out the particular social group of [their]

family.” Garcia v. Wilkinson, 988 F.3d 1136, 1145 (9th Cir. 2021) (internal

quotation marks and citation omitted). Although Quezada-Gonzalez states

instances where his sister, brothers, and uncles separately faced robbery, threats,

extortion, or harassment, the agency reasonably concluded that he failed to show

they were specially sought out for their membership in his family. Lastly, nothing

in the record compels us to reverse the immigration judge’s finding that Quezada-

Gonzalez failed to establish a “well-founded fear of persecution.” 8 U.S.C.

§ 1101(a)(42)(A). He faced no past persecution; while living in the United States,

he has never received any threat claiming to harm him if he returns to Mexico; his

3 alleged fear of the increased level of violence in Guadalajara does not establish a

“reasonable possibility” that he would be persecuted. INS v. Cardoza-Fonseca,

480 U.S. 421, 440 (1987).

For the same reasons discussed above regarding protected grounds and fear

of persecution, we also deny review of Quezada-Gonzalez’s petition with respect

to withholding of removal. See Barajas-Romero v. Lynch, 846 F.3d 351, 359–60

(9th Cir. 2017) (noting that where a petitioner does not establish any protected

ground, the nexus analysis under asylum and withholding claims is the same);

Fisher v. I.N.S., 79 F.3d 955, 961 (9th Cir. 1996) (noting that a claimed fear of

persecution falling short of asylum’s “well-founded fear” standard necessarily

cannot meet the higher standard of a “clear probability of persecution” for

withholding).

We further decide that substantial evidence supports the immigration judge’s

finding that Quezada-Gonzalez failed to show he is “more likely than not to suffer”

torture if removed. Plancarte Sauceda, 23 F.4th at 834 (quoting 8 C.F.R.

§ 1208.16(c)(2)). Nothing in Quezada-Gonzalez’s general claim of fear of

“kidnapings, extortions, robberies, etc.,” or the country report he submitted shows

a “particularized threat of torture” that compels us to conclude differently from the

immigration judge. Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004).

4 PETITION DENIED.