Jaime Delgado-Gomez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME ENRIQUE DELGADO-GOMEZ, Nos. 14-72241
20-71652
Petitioner,
Agency No. A088-757-899
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted June 24, 2021 **
Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.
Jaime Enrique Delgado-Gomez, a native and citizen of Mexico, petitions in
No. 14-72241 for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s decision denying his
applications for asylum, withholding of removal, and protection 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”). He petitions in No. 20-71652 for review of
the BIA’s order denying his motion to reopen proceedings.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
whether a petitioner has been afforded due process. Ibarra-Flores v. Gonzales,
439 F.3d 614, 620 (9th Cir. 2006). We review for substantial evidence the
agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.
2006). We review for abuse of discretion the denial of a motion to reopen. Cano-
Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). In No. 14-72241, we deny in
part and dismiss in part the petition for review. In No. 20-71652, we deny the
petition for review.
We begin with No. 14-72241. We lack jurisdiction to consider Delgado-
Gomez’s contentions regarding the agency’s rejection of his asylum application as
untimely because he did not raise them before the agency. Barron v. Ashcroft, 358
F.3d 674, 677-78 (9th Cir. 2004). We reject his challenge to the BIA’s
streamlining procedures because the BIA’s order was not a streamlined decision.
Substantial evidence supports the agency’s conclusion that Delgado-Gomez
failed to demonstrate either that he had suffered past persecution or that he faced a
clear probability of future persecution. See, e.g., Duran-Rodriguez v. Barr, 918
F.3d 1025, 1028 (9th Cir. 2019) (“Persecution is an extreme concept that does not
include every sort of treatment our society regards as offensive.” (internal
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quotation marks omitted)); id. at 1029 (noting that a petitioner who had not
demonstrated past persecution had the burden of proving that “relocation would
not be possible or reasonable”). Thus, Delgado-Gomez’s claim for withholding of
removal fails.
Substantial evidence supports the agency’s denial of CAT protection
because Delgado-Gomez failed to show that it is more likely than not he will be
tortured by or with the consent or acquiescence of the government if returned to
Mexico. Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
We turn to No. 20-71652. The BIA can deny a motion to reopen for several
reasons, including that the movant failed to establish a prima facie case for the
relief sought. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). The BIA
did not abuse its discretion in concluding that the statements in Delgado-Gomez’s
application for cancellation of removal, which were vague and unsupported by
documentation, were insufficient to establish a prima facie case that his removal
would cause his husband to suffer exceptional and extremely unusual hardship as
required for that form of relief. See In re Monreal-Aguinaga, 23 I. & N. Dec. 56,
62 (BIA 2001) (“[T]he hardship . . . must be ‘substantially’ beyond the ordinary
hardship that would be expected when a close family member leaves this
country.”); see also Garcia v. Holder, 621 F.3d 906, 913 (9th Cir. 2010) (noting
that the “‘exceptional and extremely unusual hardship’ standard is a very
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demanding one” and concluding that the BIA did not abuse its discretion in
determining that the petitioners’ proffered evidence was insufficient to warrant
reopening).
The temporary stays of removal issued in both cases remain in place until
issuance of the mandates.
In No. 14-72241: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
In No. 20-71652: PETITION FOR REVIEW DENIED.
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