Rogerio Mendivil-Gutierrez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2022
• Docket: 19-72781
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROGERIO MENDIVIL-GUTIERREZ, No. 19-72781

Petitioner, Agency No. A208-180-775

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

Respondent.

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

Submitted March 8, 2022** Phoenix, Arizona

Before: PAEZ, CLIFTON, and WATFORD, Circuit Judges.

Rogerio Mendivil-Gutierrez, a native and citizen of Mexico, petitions for

review of an order by the Board of Immigration Appeals (BIA) denying his

applications for cancellation of removal, asylum, withholding of removal, and

relief under the Convention Against Torture (CAT). We deny in part and dismiss

* 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). in part the petition for review.

1. Adverse credibility finding. In his opening brief before this court,

Mendivil-Gutierrez does not challenge the agency’s adverse credibility finding.

Therefore, he has waived any such challenge. See Corro-Barragan v. Holder, 718

F.3d 1174, 1177 n.5 (9th Cir. 2013). In reviewing the agency’s denial of his

claims for relief, we are bound by that determination.

2. Cancellation of removal. Substantial evidence supports the agency’s

determination that Mendivil-Gutierrez is ineligible for cancellation of removal

under 8 U.S.C. § 1229b(b)(1). He cannot show ten years of continuous physical

presence because his expedited removal order in September 2015 broke that

presence. See Juarez-Ramos v. Gonzales, 485 F.3d 509, 511 (9th Cir. 2007).

Mendivil-Gutierrez’s reliance on Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir.

2006), is not persuasive. Unlike a voluntary departure, the record shows that

Mendivil-Gutierrez understood he was to depart the U.S. and that he could not re-

enter for five years. Cf. id. at 619-20 (explaining that a voluntary departure only

breaks physical presence if there is evidence the noncitizen understood they could

not reenter and resume continuous presence). Even assuming that the immigration

official who oversaw his removal did not advise Mendivil-Gutierrez of

cancellation of removal relief, there was no error because he was not potentially

eligible for cancellation of removal at that time. His answers to the official’s

2 questions confirmed that he did not have a qualifying relative in 2015, and he did

not marry his U.S. citizen spouse until April 2017. See § 1229b(b)(1)(D).

Mendivil-Gutierrez’s equal protection claim also fails because he has not shown

that the classification between departures that break continuous presence and those

that do not is irrational. See Gonzalez-Medina v. Holder, 641 F.3d 333, 336 (9th

Cir. 2011).

3. Asylum and withholding of removal. Having determined that Mendivil-

Gutierrez was not a credible witness, the agency concluded that he failed to meet

his burden of showing that he was eligible for asylum and withholding of removal.

Substantial evidence supports that determination. To the extent Mendivil-

Gutierrez challenges the IJ’s alternative reasons for denying asylum and

withholding of removal, we lack jurisdiction to review them because the BIA

declined to consider them. See Tekle v. Mukasey, 533 F.3d 1044, 1056 (9th Cir.

2008) (citing I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)); Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010) (“[O]ur review is limited to the actual

grounds relied upon by the BIA.” (citation omitted)).

4. CAT relief. “An adverse credibility determination is not necessarily a

death knell to CAT protection.” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir.

2010). Here, however, the country conditions evidence does not compel the

conclusion that Mendivil-Gutierrez is more likely than not to personally face

3 torture upon removal to Mexico. See id. at 1049 (holding that “background

material” on country did not show the petitioner fell within the cases or

information discussed in that evidence); Mukulumbutu v. Barr, 977 F.3d 924, 927-

28 (9th Cir. 2020) (same).

5. Due process. Mendivil-Gutierrez has also not shown a due process

violation. There is no indication that the IJ acted in a biased manner in concluding

he did not show past persecution. See Rivera v. Mukasey, 508 F.3d 1271, 1276

(9th Cir. 2007). Further, we need not address whether the IJ failed to consider all

relevant factors contributing to his wife’s hardship because, in any event, he cannot

show prejudice as he is otherwise ineligible for cancellation of removal. Ibarra-

Flores, 439 F.3d at 620-21.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.