Victor Linares-Contreras v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2023
• Docket: 17-72810
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICTOR MANUEL LINARES- No. 17-72810 CONTRERAS, 20-71835

Petitioner, Agency No. A201-223-705

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 15, 2023** San Francisco, California

Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,*** District Judge.

Victor Manuel Linares-Contreras, a native and citizen of El Salvador,

* 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 Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his

appeal from a decision of the Immigration Judge (IJ) denying his application for

withholding of removal and protection under the Convention Against Torture

(CAT). He also petitions for review of the BIA’s denial of his motion to

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

determination that a petitioner is not entitled to withholding of removal or CAT

relief for substantial evidence, Lalayan v. Garland, 4 F.4th 822, 839–40 (9th Cir.

2021), and the BIA’s denial of a motion to reconsider for abuse of discretion,

Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir. 2007). We deny both petitions

for review.

1. Substantial evidence supports the BIA’s denial of Linares-Contreras’s

application for withholding of removal. Linares-Contreras forfeited any argument

that he was a member of a cognizable social group by failing to advance it in his

opening brief. See Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022).

Additionally, the BIA acknowledged and rejected Linares-Contreras’s argument

that he would suffer persecution on account of his political opinion. Substantial

evidence supports this finding, and the agency did not err in finding the lack of

nexus dispositive. See Santos-Lemus v. Mukasey, 542 F.3d 738, 746–47 (9th Cir.

2008) (upholding BIA’s “determination that a general aversion to gangs does not

constitute a political opinion for asylum purposes” and denying petition when

2 petitioner presented no evidence “that he was politically or ideologically opposed

to the ideals espoused by the Mara or to gangs in general, or that the Mara

imputed” a political opinion to him), overruled on other grounds by Henriquez-

Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc); see also Ramos-

Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (substantial evidence supported

denial of withholding of removal when petitioner “allege[d] no facts in support of a

political opinion, actual or imputed, beyond his refusal to join the MS-13”),

overruled on other grounds by Henriquez-Rivas, 707 F.3d at 1093; Riera-Riera v.

Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016) (“The lack of a nexus to a protected

ground is dispositive of [a petitioner’s] asylum and withholding of removal

claims.”).

The BIA also upheld the IJ’s finding that Linares-Contreras had not

established a clear probability of future persecution, observing that Linares-

Contreras “left El Salvador 12 years ago, and no one has contacted [his] family

looking for him.” Linares-Contreras does not challenge this finding, and it is

supported by substantial evidence. See Sharma v. Garland, 9 F.4th 1052, 1065

(9th Cir. 2021) (no well-founded fear of future persecution when, among other

things, it “ha[d] been decades since [the petitioner’s] last personal interaction” with

his potential persecutor); Lanza v. Ashcroft, 389 F.3d 917, 934–35 (9th Cir. 2004)

(stating that “[t]here is no reason in the record to warrant a belief that [the

3 petitioner’s] alleged persecutors would still be interested in her” when the “alleged

persecution occurred more than ten years ago”).

2. Substantial evidence supports the BIA’s denial of CAT relief.

Although gang members threatened and, on one occasion, beat Linares-Contreras,

causing his nose to “bleed from the inside,” substantial evidence supports the

BIA’s finding that this did not constitute past torture. See Tzompantzi-Salazar v.

Garland, 32 F.4th 696, 700–01, 706 (9th Cir. 2022) (holding that the record did not

compel the conclusion that the petitioner, who was kidnapped twice and “beaten

with brass knuckles that caused hearing damage,” suffered past torture).

Substantial evidence also supports the BIA’s finding that Linares-Contreras did not

establish a particularized risk of future torture. See Ramirez-Munoz v. Lynch, 816

F.3d 1226, 1230 (9th Cir. 2016) (“Where Petitioners have not shown they are any

more likely to be victims of violence and crimes than the populace as a whole in

[the country of removal], they have failed to carry their burden [for CAT relief].”).

3. The BIA did not abuse its discretion in denying Linares-Contreras’s

motion to reconsider. Although Linares-Contreras’s notice to appear did not

include the location of the immigration court where the notice to appear would be

filed, see 8 C.F.R. §§ 1003.14(a), 1003.15(b)(6), “the immigration courts’

adjudicatory authority over removal proceedings” stems from the Immigration and

Nationality Act, not from the regulations. United States v. Bastide-Hernandez, 39

4 F.4th 1187, 1191 (9th Cir. 2022) (en banc) (quoting United States v. Cortez, 930

F.3d 350, 360 (4th Cir. 2019)). Therefore, the notice’s failure to comply with the

applicable regulations, which serve as “nonjurisdictional claim-processing rule[s],”

did not divest the immigration court of jurisdiction. Id. at 1193; see also Matter of

Rosales Vargas, 27 I. & N. Dec. 745, 748–49, 753–54 (B.I.A. 2020) (concluding

that 8 C.F.R. §§ 1003.14(a) and 1003.15(b)(6) are “claim-processing” rules and

that although respondents timely challenged the deficiencies in their notices to

appear, they suffered “no apparent prejudice” given that they had knowledge of the

time, date, and place of their hearings, appeared for the hearings, and “were able to

file all of their documents for the [IJ’s] consideration”).

PETITIONS DENIED.