Saul Vargas v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2021
• Docket: 19-71645
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SAUL MANDUJANO VARGAS, Nos. 19-71645 20-70802 Petitioner, Agency No. A200-247-039 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of Orders of the Board of Immigration Appeals

Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

Saul Mandujano Vargas, a native and citizen of Mexico, petitions for review

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

immigration judge’s decision denying his application for withholding of removal

and relief under the Convention Against Torture (“CAT”) (petition No. 19-71645)

* 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). and the BIA’s order denying his motion to reopen and remand removal

proceedings (petition No. 20-70802). Our jurisdiction is governed by 8 U.S.C.

§ 1252. 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. Padilla-Martinez v. Holder,

770 F.3d 825, 830 (9th Cir. 2014). We review for abuse of discretion the BIA’s

denial of a motion to reopen and remand. Movsisian v. Ashcroft, 395 F.3d 1095,

1098 (9th Cir. 2005). We deny in part and dismiss in part petition No. 19-71645.

We deny petition No. 20-70802.

As to petition No. 19-71645, substantial evidence supports the agency’s

determination that Mandujano Vargas failed to establish the harm he experienced

or fears was or would be 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”); Sagaydak v. Gonzales, 405 F.3d

1035, 1042 (9th Cir. 2005) (to establish a nexus to a political opinion, petitioner

must show “(1) that [he] had either an affirmative or imputed political opinion, and

(2) that [he was] targeted on account of that opinion.”); see also 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 members

2 20-70802 bears no nexus to a protected ground”). We lack jurisdiction to consider

Mandujano Vargas’ contentions concerning the cognizability of a returnee-based

particular social group and a pattern or practice of persecution in Mexico. See

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

to consider claims not raised to agency).

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

Mandujano Vargas 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). Mandujano Vargas’

contention that the agency evaluated his claim under an incorrect standard fails as

unsupported by the record. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error and substantial prejudice to prevail on a due process claim).

Thus, the government’s motion for summary disposition of this petition for

review (Docket Entry No. 19) is granted because the questions raised in the

opening brief are so insubstantial as not to require further proceedings. See 9th

Cir. R. 3-6(a) (stating standard for summary disposition); see also United States v.

Hooton, 693 F.2d 857 (9th Cir. 1982).

As to petition No. 20-70802, the BIA did not abuse its discretion in denying

Mandujano Vargas’ motion to reopen and remand where the evidence offered with

his motion was available prior to his hearing. See 8 C.F.R. § 1003.2(c)(1) (a

3 20-70802 motion reopen proceedings “shall not be granted unless [the new evidence] . . . is

material and was not available . . . at the former hearing”); Romero-Ruiz v.

Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008) (“The formal requirements of a

motion to remand and a motion to reopen are the same.”).

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

mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise

denied.

No. 19-71645: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.

No. 20-70802: PETITION FOR REVIEW DENIED.

4 20-70802