Saul Gomez-Aguilar v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2023
• Docket: 20-71350
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SAUL GOMEZ-AGUILAR, AKA Saul No. 20-71350 Gomez Agular, Agency No. A098-570-798 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 14, 2023**

Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.

Saul Gomez-Aguilar, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (“CAT”), and denying his motion to remand or terminate. We have jurisdiction

under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We

review for abuse of discretion the denial of motions to remand and to terminate

proceedings. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005);

Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020). We deny in part and grant

in part the petition for review, and remand.

The record does not compel the conclusion that Gomez-Aguilar established

changed circumstances to excuse the untimely asylum application. See Singh v.

Holder, 649 F.3d 1161, 1164-65 (9th Cir. 2011) (en banc) (court retained

jurisdiction to review legal or constitutional questions related to the one-year filing

deadline); 8 C.F.R. § 1208.4(a)(4) (changed circumstances defined). Thus,

Gomez-Aguilar’s asylum claim fails.

Substantial evidence supports the agency’s determination that Gomez-

Aguilar failed to establish he was or would be persecuted on account of a protected

ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if

membership in a particular social group is established, an applicant must still show

that “persecution was or will be on account of his membership in such group”);

Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be

free from harassment by criminals motivated by theft or random violence by gang

2 20-71350 members bears no nexus to a protected ground”). Thus, Gomez-Aguilar’s

withholding of removal claim fails.

We do not consider Gomez-Aguilar’s contention as to whether the Mexican

government is unable or unwilling to protect him because the BIA did not deny

relief on this ground. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th

Cir. 2011) (review limited to the grounds relied on by the BIA). We also do not

consider his imputed political opinion claim because the agency did not reach it,

and Gomez-Aguilar does not contend the BIA erred in finding that this claim was

not properly before it. See id.; see also Corro-Barragan v. Holder, 718 F.3d 1174,

1177 n.5 (9th Cir. 2013).

Substantial evidence supports the agency’s denial of CAT protection

because Gomez-Aguilar failed to show it is more likely than not he will be tortured

by or with the consent or acquiescence of the government if returned to Mexico.

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

Gomez-Aguilar’s contention that the IJ lacked jurisdiction over his

proceedings in his motion to terminate is foreclosed by United States v. Bastide-

Hernandez, 39 F.4th 1187, 1188, 1193 (9th Cir. 2022) (en banc) (lack of hearing

information in notice to appear does not deprive immigration court of subject

matter jurisdiction, and 8 C.F.R. § 1003.14(a) is satisfied when later notice

provides hearing information).

3 20-71350 As to the denial of his motion to remand, the agency did not have the benefit

of the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021),

holding that a notice of hearing does not cure a statutorily deficient notice to

appear to trigger the cancellation of removal stop-time provision. Thus, we grant

the petition for review for the BIA to reconsider Gomez-Aguilar’s motion to

remand in light of Niz-Chavez. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per

curiam).

Each party must bear its own costs on appeal.

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

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

4 20-71350