Rogelio Gomez-Orozco v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2022
• Docket: 17-71836
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROGELIO SAMUEL GOMEZ-OROZCO, No. 17-71836 a.k.a. Roberto Perez Gonzalez, Agency No. A200-319-766 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 10, 2022** Portland, Oregon

Before: SCHROEDER and SANCHEZ, Circuit Judges, and ANTOON,*** District Judge.

Petitioner Rogelio Samuel Gomez-Orozco (“Gomez-Orozco”), a native and

* 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 Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. citizen of Mexico, seeks review of the Board of Immigration Appeals’ (“Board”)

decision affirming the Immigration Judge’s (“IJ”) denial of asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We dismiss the petition in part and deny it in

part.

1. An applicant must show by clear and convincing evidence that his

asylum application was filed within one year of his arrival in the United States. 8

U.S.C. § 1158(a)(2)(B). Gomez-Orozco applied for asylum in 2012, several years

after his arrival in the United States in 2006, and he was thus required to show

either “changed circumstances” materially affecting his eligibility for asylum or

“extraordinary circumstances” excusing his untimely application. 8 U.S.C. §

1158(a)(2)(D).

Gomez-Orozco argues that both changed and extraordinary circumstances

excuse his delay in applying for asylum. As to changed circumstances, he testified

that his uncle in Mexico was threatened by a drug trafficking organization in 2011

or 2012 and that his sister in Mexico was threatened by the organization in 2013.

As to extraordinary circumstances, Gomez-Orozco testified that he was unaware he

needed to file for asylum because he was fraudulently deceived by a notary who

indicated he would file all necessary documents to secure Gomez-Orozco’s rights

and did not do so.

2 The Board concurred with the IJ’s determination that Gomez-Orozco’s

testimony regarding changed circumstances lacked sufficient detail. The IJ and

Board also rejected Gomez-Orozco’s extraordinary circumstances claim, noting

that Gomez-Orozco filing for adjustment of status in 2009 evinced an

understanding that he needed to take affirmative action to legalize his status.

Because the changed or extraordinary circumstances determination by the Board

rests on the IJ’s resolution of a factual dispute, we lack jurisdiction to review it. 8

U.S.C. § 1158(a)(3); see Sumolang v. Holder, 723 F.3d 1080, 1082 (9th Cir. 2013).

We dismiss Gomez-Orozco’s petition to the extent it challenges the Board’s denial

of asylum. See Sumolang, 723 F.3d at 1082; Gasparyan v. Holder, 707 F.3d 1130,

1132 (9th Cir. 2013).

2. Substantial evidence supports the IJ’s adverse credibility

determination and consequent denial of Gomez-Orozco’s application for

withholding of removal. To qualify for withholding of removal, a petitioner must

show he will more likely than not be persecuted upon return to his country of

origin. Aden v. Wilkinson, 989 F.3d 1073, 1085–86 (9th Cir. 2021); 8 C.F.R. §

208.16(b)(1)(iii). Under the REAL ID Act of 2005, “there is no presumption that

an applicant for relief is credible, and the IJ is authorized to base an adverse

credibility determination on ‘the totality of the circumstances’ and ‘all relevant

factors.’” Ling Huang v. Holder, 744 F.3d 1149, 1152–53 (9th Cir. 2014) (quoting

3 8 U.S.C. § 1158(b)(1)(B)(iii)). “We review factual findings, including adverse

credibility determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d

785, 789 (9th Cir. 2014). We will reverse the Board’s decision only if “the

evidence compels the conclusion” the decision was incorrect. Gu v. Gonzales, 454

F.3d 1014, 1018 (9th Cir. 2006).

The IJ pointed to Gomez-Orozco’s repeated failure to respond to basic

questions, including questions directly related to his applications for relief. For

example, Gomez-Orozco could not describe in any detail the organization he

claims threatened his family, even though he was asked direct questions about the

organization and was given time before testifying to review his prior written

statement. Nor could Gomez-Orozco remember how long he had been in the

United States after his first entry, when or how he was arrested for the first time in

the United States, or whether he was released to immigration authorities upon his

release from jail. The IJ concluded from his testimony that he “show[ed] an

intentional lack of candor intended to minimize providing testimony that could

have an adverse impact on his request for relief” and that he therefore failed to

show he would more likely than not face persecution if removed to Mexico. See

Aden, 989 F.3d at 1085–86. Where, as here, an adverse credibility determination

rests on specific examples of a petitioner’s “obvious evasiveness,” we will uphold

the determination. Bandari v. I.N.S., 227 F.3d 1160, 1166 (9th Cir. 2000) (quoting

4 Shah v. I.N.S., 220 F.3d 1062, 1068 (9th Cir. 2000)).

Gomez-Orozco argues for the first time on appeal to this Court that his non-

responsiveness was due to a cognitive impairment and that the IJ violated his due

process rights by failing to order a competency hearing. “[W]e may not entertain

due process claims based on correctable procedural errors” unless such claims

were raised below. Agyeman v. I.N.S., 296 F.3d 871, 877 (9th Cir. 2002). Because

the failure to order a competency hearing is a procedural error the Board could

have corrected had Gomez-Orozco raised his due process claim below, the claim is

not reviewable. See id.

3. Substantial evidence supports the denial of CAT relief. Gomez-

Orozco failed to show he would more likely than not be tortured if removed to

Mexico, whether by a person acting in an official capacity or anyone else. See 8

C.F.R. §§ 208.17(a), 208.18(a)(1); Almaghzar v. Gonzales, 457 F.3d 915, 922–23

(9th Cir. 2006).

PETITION DISMISSED in part and DENIED in part.