Vera Carreon v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2024
• Docket: 23-1124
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 7 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GELASIO VERA CARREON, No. 23-1124 Agency No. Petitioner, A205-313-869 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 4, 2024** Pasadena, California

Before: WARDLAW, HURWITZ, and DESAI, Circuit Judges.

Gelasio Vera Carreon (“Vera”), a native and citizen of Mexico, petitions for

review of a Board of Immigration Appeals (“BIA”) decision denying his motion to

terminate removal proceedings for lack of jurisdiction and dismissing an appeal from

* 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 denial by an immigration judge (“IJ”) of his applications for cancellation of

removal, asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of a

motion to terminate removal proceedings for abuse of discretion. Dominguez v. Barr,

975 F.3d 725, 734 (9th Cir. 2010). We review de novo “whether a conviction

constitutes a removable offense under the Immigration and Nationality Act.” Carillo

v. Holder, 781 F.3d 1155, 1157 (9th Cir. 2015) (quoting Szalai v. Holder, 572 F.3d

975, 978 (9th Cir. 2009) (per curiam)). We review the BIA’s denial of asylum,

withholding of removal, and CAT relief for substantial evidence. Duran-Rodriguez

v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We deny the petition.1

1. The BIA did not abuse its discretion in denying Vera’s motion to

terminate proceedings for lack of jurisdiction. Vera contends that his statutorily

deficient Notice to Appear (“NTA”) deprived the immigration court of jurisdiction,

but United States v. Bastide-Hernandez, 39 F.4th 1187, 1190–94 (9th Cir. 2022) (en

banc), forecloses that argument.

2. The BIA did not err in denying Vera’s application for cancellation of

removal. Vera’s conviction for corporal injury on a spouse or cohabitant under

1 We deny Vera’s petition for initial hearing en banc, Dkt. 16. We also deny his motion to stay removal, Dkt. 3, as moot.

2 23-1124 California Penal Code § 273.5(a) is categorically a crime of domestic violence under

8 U.S.C. § 1227(a)(2)(E)(i), Carillo, 781 F.3d at 1158–59, and thus, Vera is

ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(c).

3. Substantial evidence supports the BIA’s finding that Vera is ineligible

for asylum and withholding of removal because he failed to establish past

persecution or a well-founded fear of future persecution. Vera never personally

experienced physical violence while living in Mexico. See Nagoulko v. I.N.S., 333

F.3d 1012, 1016 (9th Cir. 2003) (“[I]t is significant that [petitioner] never suffered

any significant physical violence.”). Vera testified that several family members were

murdered but offered no evidence that these murders were “part of a pattern of

persecution closely tied to [Vera] himself.” Wakkary v. Holder, 558 F.3d 1049, 1060

(9th Cir. 2009) (cleaned up). Indeed, Vera testified that his father was killed out of

“jealousy” and “greed,” and his cousin was killed for “money.”

Vera also testified about attempted extortions for money. But “[m]ere threats,

without more, do not necessarily compel a finding of past persecution.” Villegas

Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021); see Lim v. INS, 224 F.3d

929, 936 (9th Cir. 2000). There is no evidence that the attempted extortions were

connected to one another, motivated by Vera’s membership in his proposed

particular social groups, or followed by acts of violence either against Vera or his

family members. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003)

3 23-1124 (finding “unfulfilled threats” to constitute “harassment rather than persecution”).

The record also does not compel a conclusion that Vera has demonstrated an

objectively reasonable fear of future persecution. See Sharma v. Garland, 9 F.4th

1052, 1065 (9th Cir. 2021) (recognizing that even when a petitioner does not show

past persecution, a petitioner “might nevertheless be eligible for relief if he instead

shows a well-founded fear of future persecution” that is “objectively reasonable”

(cleaned up)). Vera testified that he fears the perpetrators of his family members’

murders and the men who extorted him for money, but he offered no evidence that

these perpetrators maintain an interest in him. See id. (upholding agency decision

because “there is an insufficient basis in the record to conclude that [the perpetrator]

and his followers would have a continuing interest” in the petitioner).

4. Substantial evidence also supports the BIA’s finding that Vera failed to

establish eligibility for CAT protection. A petitioner seeking CAT protection must

show that it is more likely than not he will be subjected to torture by or with the

acquiescence of a public official if removed to his native country. Xochihua-Jaimes

v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Because the harm Vera has suffered

does not rise to the level of persecution, “it necessarily falls short of the definition

of torture.” Sharma, 9 F.4th at 1067. Further, Vera’s “generalized evidence of

violence and crime in Mexico is not particular to [him],” and so a reasonable

factfinder would not be compelled to find Vera eligible for CAT protection.

4 23-1124 Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam).

The petition is DENIED.

5 23-1124