Sergio Martinez-Cota v. Eric Holder, Jr. , 539 F. App'x 837 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO ARMANDO MARTINEZ- No. 12-71584
COTA,
Agency No. A200-704-319
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 20, 2013**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Petitioner Sergio Armando Martinez-Cota, a native and citizen of Mexico,
petitions for review of a decision from the Board of Immigration Appeals (“BIA”)
in which the BIA dismissed his appeal from the immigration judge’s (“IJ”) denial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of relief in the form of asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”).
Where the BIA conducts its own review of the evidence and law rather than
adopting the IJ’s decision, this court’s “review is limited to the BIA’s decision,
except to the extent that the IJ’s opinion is expressly adopted.” Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks omitted).
We review legal questions de novo and factual findings for substantial evidence.
Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). A denial of
asylum, withholding of removal, or protection under CAT is reviewed for
substantial evidence. Sinha v. Holder, 564 F.3d 1015, 1020, 1025 (9th Cir. 2009).
We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for
review.1
We uphold the agency’s determination that Martinez-Cota’s application for
asylum is time-barred. He failed to file his application within a year of his last
entry into the United States. See 8 U.S.C. § 1158(a)(2)(B). Moreover, substantial
evidence supports the agency’s conclusion that a warrant issued in Mexico in 2011
for Martinez-Cota’s arrest did not constitute changed circumstances that would
1
Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.
2
excuse his failure to timely file. See 8 U.S.C. § 1158(a)(2)(D); Ramadan v.
Gonzales, 479 F.3d 646, 657 (9th Cir. 2007).
Substantial evidence supports the agency’s conclusion that Martinez-Cota
failed to satisfy his burden of proof for asylum or withholding of removal. The
agency found that an incident in 1995 in which Martinez-Cota was shot by police
officers did not constitute past persecution or establish a well-founded fear of
future persecution because the evidence did not show that the shooting was
intentional or based on retaliatory motive. The record does not compel a contrary
conclusion. See Kumar v. Gonzales, 439 F.3d 520, 524 (9th Cir. 2006) (upholding
the IJ’s determination that an incident of harm was an accident and therefore did
not constitute persecution).
Martinez-Cota’s claim that he established past persecution based on threats
from the police and occasional arrests is unavailing. None of these incidents rise to
the level of persecution, especially where neither the threats nor arrests caused
Martinez-Cota any suffering or harm. See Mendez-Gutierrez v. Ashcroft, 340 F.3d
865, 869 n.6 (9th Cir. 2003) (concluding that unspecified threats and occasional
incidents of detention and interrogation did not rise to the level of persecution);
Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (holding that threats against an alien
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and his family did not constitute persecution where they remained in the area and
were not harmed or even confronted by the NPA).
Moreover, the threats and arrests do not establish a well-founded fear of
future persecution, especially in light of the fact that Martinez-Cota voluntarily
returned to Mexico on multiple occasions. See Loho v. Mukasey, 531 F.3d 1016,
1017-18 (9th Cir. 2008) (“It is well established in this court that an alien’s history
of willingly returning to his or her home country militates against a finding of past
persecution or a well-founded fear of future persecution.”). Martinez-Cota’s claim
is further weakened by the fact that the police commander who threatened him is
now deceased. See Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988)
(per curiam) (holding that an alien failed to establish a well-founded fear of
persecution where the person who had threatened the alien was deceased).
Substantial evidence supports the agency’s determination that Martinez-Cota
failed to establish a well-founded fear of future persecution based on the 2011
arrest warrant. The record does not compel a finding that the warrant was issued
for an improper purpose, and ordinary criminal prosecution does not constitute
persecution or give rise to a well-founded fear of persecution. See Lin v. Holder,
610 F.3d 1093, 1097 (9th Cir. 2010); Singh v. Gonzales, 439 F.3d 1100, 1112 (9th
Cir. 2006) (“where there is evidence of a legitimate prosecutorial purpose, foreign
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authorities enjoy much latitude in vigorously enforcing their laws”). In addition,
Martinez-Cota has failed to provide evidence that would compel the conclusion
that the warrant was connected to the 1995 shooting or police threats and arrests.
See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding that an alien’s
speculative fear of future harm was insufficient to compel a finding of a well-
founded fear of future persecution where the alien submitted no specific evidence
to support her claims).
Therefore, substantial evidence supports the agency’s finding that Martinez-
Cota failed to meet his burden of proof to qualify for asylum. See Kumar, 439
F.3d at 524-25. Because Martinez-Cota cannot meet the lesser burden of proof of
asylum, he necessarily fails to meet the higher burden of proof to qualify for
withholding of removal. See id. at 525.
Finally, the agency’s denial of protection under CAT is supported by
substantial evidence because the record does not compel a finding that it is more
likely than not that Martinez-Cota will be tortured in Mexico. See Zheng v.
Holder, 644 F.3d 829, 835-36 (9th Cir. 2011).
Martinez-Cota’s remaining contentions are meritless.
PETITION FOR REVIEW DENIED.
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