NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RUBEN BONILLA-HERNANDEZ, No. 20-72183
Petitioner, Agency No. A044-210-111
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted January 13, 2022** Pasadena, California
Before: CLIFTON and M. SMITH, Circuit Judges, and S. MURPHY, III,*** District Judge.
Petitioner Ruben Bonilla-Hernandez sought review of a Board of
Immigration Appeals’ (“BIA”) decision to affirm an immigration judge’s (“IJ”)
* 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 Stephen Joseph Murphy III, United States District Judge for the Eastern District of Michigan, sitting by designation. decision to deny a withholding of removal and Convention Against Torture
(“CAT”) protection. Petitioner also challenged the BIA’s denial of his motion to
reconsider the request to remand the proceedings. We reject Petitioner’s
arguments and deny the petition.
We have jurisdiction to review the BIA decision denying a withholding of
removal based on our “on the merits” exception. See, e.g., Pechenkov v. Holder,
705 F.3d 444, 448 (9th Cir. 2012). The Government argued that the Supreme
Court’s statements in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062 (2020), suggest that we lack jurisdiction to
review factual challenges to certain removal orders and therefore the statements
effectively overruled our “on the merits” exception. But a three-judge panel may
only “reject [] prior circuit opinion[s] as having been effectively overruled” when
“the reasoning or theory of our prior circuit authority is clearly irreconcilable with
the reasoning or theory of intervening higher authority.” Miller v. Gammie, 335
F.3d 889, 893 (9th Cir. 2003) (en banc).
Neither Nasrallah nor Guerrero-Lasprilla reviewed our “on the merits”
exception. Nasrallah addressed “the narrow question” whether courts have
jurisdiction to review factual challenges to a CAT order. 140 S. Ct. at 1688. And
Guerrero-Lasprilla interpreted a phrase in 8 U.S.C. § 1252(a)(2)(D)—not whether
§ 1252(A)(2)(C) contains an exception for factual challenges to a denial of relief
2 on the merits. 140 S. Ct. at 1068. Although the dicta in Nasrallah and Guerrero-
Lasprilla appear to cast doubt upon the “on the merits” exception, the Supreme
Court’s “passing comments do not” convince us that the exception is clearly
irreconcilable with Nasrallah or Guerrero-Lasprilla, and so we maintain
jurisdiction over the petition. Childs v. San Diego Fam. Hous. LLC, 22 F.4th 1092,
1099 (9th Cir. 2022); see also United States v. Green, 722 F.3d 1146, 1150 (9th
Cir. 2013) (“Strong signals aren’t enough for a three-judge panel to overrule circuit
precedent.” (cleaned up)).
To obtain a withholding of removal, “[P]etitioner must show a ‘clear
probability’ of the threat to life or freedom if deported to his or her country of
nationality.” Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citation
omitted). A “clear probability” means “it is ‘more likely than not’ that the
petitioner would be subject to persecution on account of one of the protected
grounds.” Id. (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987)).
Substantial evidence supports the finding that Petitioner did not meet this standard.
First, Petitioner did not show he would suffer from persecution based on past
persecution. Petitioner merely asserted that he received one threatening phone call
in 2004 while he was living in the United States. Although “threats alone” may
“constitute persecution,” the threats must be “so menacing as to cause significant
actual suffering or harm.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
3 2019) (citations omitted). Based on “all of the surrounding circumstances,” the
threat fails to rise to the level of persecution because it was not “repeated,
specific[, or] ‘combined with confrontation or other mistreatment.’” Id. (citations
omitted).
Second, the possibility that Petitioner will suffer from future persecution
because of Mexican corruption and cartel violence “is too speculative to be
credited as a basis for fear of future persecution.” Nagoulko v. INS, 333 F.3d 1012,
1018 (9th Cir. 2003); see also Sharma v. Garland, 9 F.4th 1052, 1065–66 (9th Cir.
2021) (holding that a petitioner had only a speculative risk of future persecution if
he was deported to his native country). Substantial evidence therefore supports the
BIA order denying withholding of removal.
Next, we have jurisdiction to review factual challenges to CAT orders.
Nasrallah, 140 S. Ct. at 1690. “We review for substantial evidence the factual
findings underlying the BIA’s determination that an applicant is not eligible for
CAT protection.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020)
(citation omitted). We will reverse the BIA’s factual finding if “the evidence must
compel a different conclusion.” Zheng v. Holder, 644 F.3d 829, 835 (9th Cir.
2011). “[W]e review de novo both purely legal questions and mixed questions of
law and fact.” Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013) (italics and
citation omitted). We affirm the BIA for two reasons.
4 One, neither the IJ nor the BIA ignored facts in the record to deny
Petitioner’s CAT claim. “[T]his court generally presumes that the BIA thoroughly
consider[ed] all relevant evidence in the record.” Szonyi v. Whitaker, 915 F.3d
1228, 1238-39 (9th Cir. 2019) (citations omitted). And Petitioner cited no
evidence that the BIA or IJ ignored. Without a showing that the BIA or IJ skipped
over evidence, no error occurred. See Cole v. Holder, 659 F.3d 762, 771–72 (9th
Cir. 2011).
Two, substantial evidence supports the CAT denial. Petitioner failed to
show any “particularized threat of torture.” Dhital v. Mukasey, 532 F.3d 1044,
1051 (9th Cir. 2008) (emphasis in original) (quoting Lanza v. Ashcroft, 389 F.3d
917, 936 (9th Cir. 2004)). Neither Petitioner nor his family has received any
threats since 2004, and Petitioner safely visited Mexico twelve years ago.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RUBEN BONILLA-HERNANDEZ, No. 20-72183
Petitioner, Agency No. A044-210-111
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted January 13, 2022** Pasadena, California
Before: CLIFTON and M. SMITH, Circuit Judges, and S. MURPHY, III,*** District Judge.
Petitioner Ruben Bonilla-Hernandez sought review of a Board of
Immigration Appeals’ (“BIA”) decision to affirm an immigration judge’s (“IJ”)
* 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 Stephen Joseph Murphy III, United States District Judge for the Eastern District of Michigan, sitting by designation. decision to deny a withholding of removal and Convention Against Torture
(“CAT”) protection. Petitioner also challenged the BIA’s denial of his motion to
reconsider the request to remand the proceedings. We reject Petitioner’s
arguments and deny the petition.
We have jurisdiction to review the BIA decision denying a withholding of
removal based on our “on the merits” exception. See, e.g., Pechenkov v. Holder,
705 F.3d 444, 448 (9th Cir. 2012). The Government argued that the Supreme
Court’s statements in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062 (2020), suggest that we lack jurisdiction to
review factual challenges to certain removal orders and therefore the statements
effectively overruled our “on the merits” exception. But a three-judge panel may
only “reject [] prior circuit opinion[s] as having been effectively overruled” when
“the reasoning or theory of our prior circuit authority is clearly irreconcilable with
the reasoning or theory of intervening higher authority.” Miller v. Gammie, 335
F.3d 889, 893 (9th Cir. 2003) (en banc).
Neither Nasrallah nor Guerrero-Lasprilla reviewed our “on the merits”
exception. Nasrallah addressed “the narrow question” whether courts have
jurisdiction to review factual challenges to a CAT order. 140 S. Ct. at 1688. And
Guerrero-Lasprilla interpreted a phrase in 8 U.S.C. § 1252(a)(2)(D)—not whether
§ 1252(A)(2)(C) contains an exception for factual challenges to a denial of relief
2 on the merits. 140 S. Ct. at 1068. Although the dicta in Nasrallah and Guerrero-
Lasprilla appear to cast doubt upon the “on the merits” exception, the Supreme
Court’s “passing comments do not” convince us that the exception is clearly
irreconcilable with Nasrallah or Guerrero-Lasprilla, and so we maintain
jurisdiction over the petition. Childs v. San Diego Fam. Hous. LLC, 22 F.4th 1092,
1099 (9th Cir. 2022); see also United States v. Green, 722 F.3d 1146, 1150 (9th
Cir. 2013) (“Strong signals aren’t enough for a three-judge panel to overrule circuit
precedent.” (cleaned up)).
To obtain a withholding of removal, “[P]etitioner must show a ‘clear
probability’ of the threat to life or freedom if deported to his or her country of
nationality.” Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citation
omitted). A “clear probability” means “it is ‘more likely than not’ that the
petitioner would be subject to persecution on account of one of the protected
grounds.” Id. (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987)).
Substantial evidence supports the finding that Petitioner did not meet this standard.
First, Petitioner did not show he would suffer from persecution based on past
persecution. Petitioner merely asserted that he received one threatening phone call
in 2004 while he was living in the United States. Although “threats alone” may
“constitute persecution,” the threats must be “so menacing as to cause significant
actual suffering or harm.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
3 2019) (citations omitted). Based on “all of the surrounding circumstances,” the
threat fails to rise to the level of persecution because it was not “repeated,
specific[, or] ‘combined with confrontation or other mistreatment.’” Id. (citations
omitted).
Second, the possibility that Petitioner will suffer from future persecution
because of Mexican corruption and cartel violence “is too speculative to be
credited as a basis for fear of future persecution.” Nagoulko v. INS, 333 F.3d 1012,
1018 (9th Cir. 2003); see also Sharma v. Garland, 9 F.4th 1052, 1065–66 (9th Cir.
2021) (holding that a petitioner had only a speculative risk of future persecution if
he was deported to his native country). Substantial evidence therefore supports the
BIA order denying withholding of removal.
Next, we have jurisdiction to review factual challenges to CAT orders.
Nasrallah, 140 S. Ct. at 1690. “We review for substantial evidence the factual
findings underlying the BIA’s determination that an applicant is not eligible for
CAT protection.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020)
(citation omitted). We will reverse the BIA’s factual finding if “the evidence must
compel a different conclusion.” Zheng v. Holder, 644 F.3d 829, 835 (9th Cir.
2011). “[W]e review de novo both purely legal questions and mixed questions of
law and fact.” Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013) (italics and
citation omitted). We affirm the BIA for two reasons.
4 One, neither the IJ nor the BIA ignored facts in the record to deny
Petitioner’s CAT claim. “[T]his court generally presumes that the BIA thoroughly
consider[ed] all relevant evidence in the record.” Szonyi v. Whitaker, 915 F.3d
1228, 1238-39 (9th Cir. 2019) (citations omitted). And Petitioner cited no
evidence that the BIA or IJ ignored. Without a showing that the BIA or IJ skipped
over evidence, no error occurred. See Cole v. Holder, 659 F.3d 762, 771–72 (9th
Cir. 2011).
Two, substantial evidence supports the CAT denial. Petitioner failed to
show any “particularized threat of torture.” Dhital v. Mukasey, 532 F.3d 1044,
1051 (9th Cir. 2008) (emphasis in original) (quoting Lanza v. Ashcroft, 389 F.3d
917, 936 (9th Cir. 2004)). Neither Petitioner nor his family has received any
threats since 2004, and Petitioner safely visited Mexico twelve years ago. Without
more, Petitioner offered only generalized speculation that he may be targeted if he
returns to Mexico. See Gomez Fernandez v. Barr, 969 F.3d 1077, 1091 (9th Cir.
2020) (rejecting a challenge to a CAT denial because “speculation that the same
individuals who targeted [petitioner’s] family members in 1996 would target him
now if he returned is insufficient”).
Beyond that, Petitioner failed to identify “a public official or other person
acting in an official capacity” who would inflict, instigate, consent, or allow any
particularized torture to him. Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir.
5 2003) (citation omitted); see also Garcia-Milian v. Holder, 755 F.3d 1026, 1034
(9th Cir. 2014) (“[T]here must be evidence that the police are unable or unwilling
to oppose the crime.”). Petitioner simply claimed that the Mexican law
enforcement would not protect him because “they don’t do anything.” And the
news articles reporting about general violence in Mexico that Petitioner submitted
are also not enough to obtain CAT protection. See Delgado-Ortiz v. Holder, 600
F.3d 1148, 1152 (9th Cir. 2010) (“[G]eneralized evidence of violence and crime”
in the country of removal is “insufficient.”). For those reasons, substantial
evidence supports the denial of CAT protection.
Last, we have jurisdiction to review the denial of the motion to reconsider
because it “rests on a ground independent of the conviction that trigger[ed] the
[§ 1252(a)(2)(C)] bar.” Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015). We
review denials of motions for reconsideration for an abuse of discretion. Cano–
Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002).
The BIA did not abuse its discretion when it denied Petitioner’s motion to
reconsider. In the motion, Petitioner sought to assert two new claims that his prior
counsel had failed to address. Because Petitioner relied on ineffective assistance of
counsel for the new claims, he must show that he suffered “substantial prejudice”
from his counsel’s alleged ineffectiveness. Torres-Chavez v. Holder, 567 F.3d
1096, 1100 (9th Cir. 2009) (quoting Lara–Torres v. Ashcroft, 383 F.3d 968, 973
6 (9th Cir. 2004)). Petitioner cannot show prejudice because the two claims are
futile.
For the first claim, Petitioner could not establish eligibility for a withholding
of removal based on membership in a particular social group of “Americanized
Mexicans who have been deported.” See Ramirez-Munoz v. Lynch, 816 F.3d 1226,
1228–29 (9th Cir. 2016); Delgado-Ortiz, 600 F.3d at 1151–52. And for the second
claim, Petitioner offered no evidence that his unknown persecutors sought to
persecute him because of his political opposition to the cartels. See Rodriguez
Tornes v. Garland, 993 F.3d 743, 752 (9th Cir. 2021) (explaining that persecution
because of a political opinion may be shown through direct or indirect evidence).
The BIA therefore did not abuse its discretion when it denied the motion to
reconsider.
The petition is DENIED and the motion for a stay of removal (Docket Entry
1) is DENIED AS MOOT. The temporary stay of removal will remain intact until
the mandate issues.