Ros Hernandez v. McHenry

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 24, 2025
• Docket: 23-2388
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 24 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MANUEL VICENTE ROS No. 23-2388 HERNANDEZ; JESUS ELMER ROS Agency Nos. DELGADO; ANTONIO ANGEL ROS A216-597-947 DELGADO, A216-597-948 A216-597-949 Petitioners,

v. MEMORANDUM*

JAMES R. MCHENRY III, Acting Attorney General,

Respondent.

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

Submitted January 21, 2025** San Diego, California

Before: WALLACE, McKEOWN, and OWENS, Circuit Judges.

Manuel Vicente Ros Hernandez, Jesus Elmer Ros Delgado, and Antonio

* 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). Angel Ros Delgado, natives and citizens of Guatemala, petition for review of the

decision of the Board of Immigration Appeals (“Board”) affirming an immigration

judge’s denial of their applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252. We review the Board’s legal conclusions de novo and the

Board’s factual findings for substantial evidence. Rodriguez-Zuniga v. Garland,

69 F.4th 1012, 1016 (9th Cir. 2023). We deny the petition for review.

1. Petitioners do not address the Board’s dispositive determination that

they failed to establish nexus to a protected ground. See Martinez-Serrano v. INS,

94 F.3d 1256, 1259–60 (9th Cir. 1996) (issues not specifically raised and argued in

a party’s opening brief are waived). Accordingly, petitioners’ asylum and

withholding of removal claims fail.

2. Substantial evidence supports the Board’s denial of CAT relief

because petitioners failed to demonstrate that it is more likely than not that they

will be tortured by or with the consent or acquiescence of the government if

returned to Guatemala. See Park v. Garland, 72 F.4th 965, 980 (9th Cir. 2023)

(“Generalized evidence of violence and crime is insufficient to establish a

likelihood of torture.”).

3. The Board did not violate petitioners’ due process rights by

considering Jesus Elmer and Antonio Angel as derivative beneficiaries of Ros

2 23-2388 Hernandez. The Board did not grant Ros Hernandez withholding or relief under

the CAT, and Jesus Elmer’s and Antonio Angel’s applications included no separate

evidence or arguments to support such relief. Thus, the Board’s error in treating

Jesus Elmer’s and Antonio Angel’s applications as derivative was harmless. See

Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010) (explaining that

prejudice requires showing that the outcome of the proceedings may have been

affected by the due process violation).

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED.

3 23-2388