Ruben Obregon Laguna v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2022
• Docket: 16-72369
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RUBEN ALEXANDER OBREGON No. 16-72369 LAGUNA, AKA Ruben Laguna, AKA Ruben Obregon Laguna, AKA Ruben Agency No. A205-721-230 Obregon, AKA Ruben Alexander Obregon,

Petitioner, MEMORANDUM*

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 16, 2022**

Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.

Ruben Alexander Obregon Laguna, a native and citizen of Nicaragua,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

* 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). application for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”), and his requests to continue proceedings. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law.

Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We review for

substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d

1182, 1184-85 (9th Cir. 2006). We review de novo claims of due process

violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535

(9th Cir. 2004). We review for abuse of discretion the denial of a continuance.

Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny in part and

dismiss in part the petition for review.

The BIA did not err in its determination that Obregon Laguna failed to

meaningfully challenge the IJ’s time bar determination as to his asylum claim. See

Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019) (no error in BIA’s waiver

determination). We lack jurisdiction to review Obregon Laguna’s contentions as

to the merits of his asylum claim because he failed to raise them to the BIA. See

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction

to review claims not presented to the agency). Thus, Obregon Laguna’s asylum

claim fails.

Substantial evidence supports the agency’s determination that Obregon

Laguna failed to establish he suffered harm that rises to the level of persecution.

2 16-72369 See Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (“Persecution . . . is an

extreme concept that does not include every sort of treatment our society regards as

offensive.” (internal quotation and citation omitted)). Substantial evidence also

supports the agency’s determination that Obregon Laguna failed to establish a clear

probability of future persecution on account of a protected ground. See Tamang v.

Holder, 598 F.3d 1083, 1094-95 (9th Cir. 2010) (fear of future persecution was not

objectively reasonable). Thus, Obregon Laguna’s withholding of removal claim

fails.

Substantial evidence also supports the agency’s denial of CAT relief because

Obregon Laguna failed to show it is more likely than not he would be tortured by

or with the consent or acquiescence of the government if returned to Nicaragua.

See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

Obregon Laguna’s contentions that the agency violated his right to due

process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error and

prejudice are required to prevail on a due process claim; see also Fernandez v.

Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the

presumption that the BIA reviewed the record).

There was no abuse of discretion in the denial of Obregon Laguna’s request

for a continuance, orally raised to the IJ on June 24, 2015, where he did not

demonstrate good cause. See 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (listing

3 16-72369 factors to be considered in determining whether the denial of a continuance

constitutes an abuse of discretion). To the extent Obregon Laguna challenges the

denial of his motion to continue, filed on May 15, 2015, we lack jurisdiction to

consider it. See Barron, 358 F.3d at 677-78.

We do not consider the materials Obregon Laguna references in his opening

brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,

963-64 (9th Cir. 1996) (en banc).

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

4 16-72369