Victor Hernandez-Balderas v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2021
• Docket: 15-71618
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICTOR HERNANDEZ-BALDERAS, No. 15-71618 AKA Victor Hernandez, Agency No. A201-284-773 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 16, 2021**

Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.

Victor Hernandez-Balderas, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his request to

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

denying his application for asylum, withholding of removal, and relief under the

* 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). Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review de novo questions of law, Conde Quevedo v. Barr, 947 F.3d

1238, 1241 (9th Cir. 2020), and we review factual findings for substantial

evidence. Id. We review for abuse of discretion the denial of a motion to remand.

Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny in part and

dismiss in part the petition for review.

Hernandez-Balderas does not raise, and has therefore waived, any challenge

to the BIA’s determination that he failed to establish that the proposed particular

social group defined as “Mexican nationals returning from the United States” is

legally cognizable. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th

Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are

waived). To the extent Hernandez-Balderas raises a new family-based particular

social group, we lack jurisdiction to consider the issue because he failed to raise

this social group 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).

Further, substantial evidence supports the BIA’s determination that Hernandez-

Balderas failed to establish that the harm he suffered or fears in Mexico was or

would be on account of a protected ground, including an actual or imputed political

opinion. See 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

2 15-71618 violence by gang members bears no nexus to a protected ground”). Thus,

Hernandez-Balderas’s asylum and withholding of removal claims fail.

The BIA did not err or abuse its discretion in declining to remand for further

consideration in light of Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014). The

BIA also did not abuse its discretion in declining to remand for consideration of

humanitarian asylum, where Hernandez-Balderas is ineligible for humanitarian

asylum because he did not establish that he suffered past persecution on account of

a protected ground. See Belishta v. Ashcroft, 378 F.3d 1078, 1080 (9th Cir. 2004)

(order) (to be eligible for humanitarian asylum, “an applicant must still establish

past persecution on account of a protected ground”). We reject as unsupported by

the record Hernandez-Balderas’s contention that the BIA gave no consideration to

his argument requesting humanitarian asylum based upon the “other serious harm”

provision in 8 C.F.R. § 1208.13(b)(1)(iii)(B) and that it failed to properly consider

this claim.

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

Hernandez-Balderas failed to show it is more likely than not he would be tortured

if returned to Mexico. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.

2009) (no likelihood of torture). We reject Hernandez-Balderas’s contention that

the BIA failed to consider his arguments or that it failed to properly consider his

CAT claim. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the BIA

3 15-71618 adequately considered evidence and sufficiently announced its decision).

Hernandez-Balderas’s contention that the IJ refused to consider evidence is not

supported by the record.

Finally, Hernandez-Balderas’s contention regarding his notice to appear is

foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir. 2019)

(notice to appear need not include time and date of initial hearing to vest

jurisdiction in the immigration court). See also United States v. Bastide-

Hernandez, --- F.3d ----, 2021 WL 345581 (9th Cir. 2021).

As stated in the court’s August 14, 2015 order, the temporary stay of

removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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