Vasquez-Lopez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2023
• Docket: 22-430
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2023

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

ROBERTO VASQUEZ-LOPEZ, No. 22-430 Petitioner, Agency No. A077-211-783 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 19, 2023** Phoenix, Arizona

Before: NGUYEN, COLLINS, and LEE, Circuit Judges.

Roberto Vasquez-Lopez, a citizen of Mexico, petitions for review of a

decision by the Board of Immigration Appeals (“BIA”) upholding a decision of an

Immigration Judge (“IJ”) denying his applications for withholding of removal and

protection under the Convention Against Torture and ordering him removed to

Mexico. We have jurisdiction under § 242 of the Immigration and Nationality Act,

8 U.S.C. § 1252. We review the agency’s legal conclusions de novo and its factual

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). findings for substantial evidence. See Davila v. Barr, 968 F.3d 1136, 1141 (9th

Cir. 2020). Under the latter standard, the “administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B). We deny the petition.

1. Vasquez-Lopez testified at an initial merits hearing in 2015, as well as at

a second merits hearing in 2018, which the BIA ordered after discovering that a

portion of the 2015 hearing had not been recorded or transcribed. In contending

that he had suffered past persecution at the hands of a cartel in league with

Mexican police, Vasquez-Lopez testified that two of his children had been

kidnapped in 1999 and then subsequently released after he and his wife paid a

substantial ransom. He testified that, after he reported the crime to the police, he

received additional threatening phone calls and extortion demands. He further

testified that, in 2012, after he was in the U.S., he received two further threatening

extortionate phone calls. Substantial evidence supports the BIA’s conclusion that,

even assuming that Vasquez-Lopez’s testimony was credible, he failed to establish

any nexus between his claimed persecution and a protected ground.

When asked at the 2015 hearing why he thought he was “selected for having

[his] family kidnapped,” Vasquez-Lopez responded that it was “[b]ecause we were

living a . . . good life. We had our house, we had our business, we had a truck.”

Vasquez-Lopez further testified that his children had been kidnapped “[b]ecause

2 . . . they wanted me to pay them money.” The attorney for the Department of

Homeland Security asked Vasquez-Lopez if “the kidnappers thought you were rich

so you’d be able to pay their ransom demands,” to which Vasquez-Lopez

responded: “Yes.” Vasquez-Lopez further testified that threatening phone calls in

2012, while he was in the United States, also concerned money. Vasquez-Lopez’s

expert on conditions in Mexico also testified at the 2018 hearing that “ultimately,”

the “purpose” of the cartels “is to make money.” Given this record, substantial

evidence supports the agency’s conclusion that “the feared persecutors targeted the

applicant solely for monetary reasons unrelated to a protected characteristic” and

that Vasquez-Lopez therefore failed to show a nexus to a protected ground, as

required to prevail on his withholding claim. See Zetino v. Holder, 622 F.3d 1007,

1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals

motivated by theft or random violence by gang members bears no nexus to a

protected ground.”).

2. Substantial evidence likewise supports the BIA’s determination that

Vasquez-Lopez “has not proven that it is more likely than not the government or

anyone else would intentionally inflict torture upon him in Mexico.” See Garcia v.

Wilkinson, 988 F.3d 1136, 1147–48 (9th Cir. 2021). Vasquez-Lopez does not

allege that he has been tortured in the past. See Mairena v. Barr, 917 F.3d 1119,

1125 (9th Cir. 2019); Nuru v. Gonzales, 404 F.3d 1207, 1217–18 (9th Cir. 2005).

3 The only concrete harm alleged by Vasquez-Lopez—the kidnapping of his

children in 1999—occurred more than fifteen years before his first hearing. See

Gomez Fernandez v. Barr, 969 F.3d 1077, 1091 (9th Cir. 2020). And the most

recent alleged threatening phone calls to Vasquez-Lopez occurred in 2012. The

record does not compel a conclusion that Vasquez-Lopez personally faces a

likelihood of torture if he returns to Mexico. See Garcia, 988 F.3d at 1148.

3. We reject Vasquez-Lopez’s contention that his former counsel’s

performance at the 2015 hearing violated his due process rights by preventing him

from “reasonably presenting his . . . case” and by ultimately causing the IJ to find

him not to be credible. In reviewing the decision after the 2018 hearing on

remand, the BIA expressly assumed that Vasquez-Lopez was credible, and then

proceeded to conclude that his claims nonetheless failed and that he had not shown

prejudice from his former attorney’s performance. We discern no error in that

analysis. See Hussain v. Rosen, 985 F.3d 634, 645 (9th Cir. 2021).

Petition DENIED.