Angel Velasco-Barragan v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL RODRIGO VELASCO- No. 20-71176
BARRAGAN,
Agency No. A206-548-409
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 8, 2022
Portland, Oregon
Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,** District
Judge.
Angel Velasco-Barragan, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) decision affirming the
Immigration Judge’s (IJ) denial of his application for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
removal, protection under the Convention Against Torture (CAT), and cancellation
of removal. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.
“Where, as here, the BIA cites [Matter of Burbano, 20 I. & N. Dec. 872(BIA 1994)] and also provides its own review of the evidence and law, we review
both the IJ’s and the BIA’s decisions.” Aguilar Fermin v. Barr, 958 F.3d 887, 891
(9th Cir. 2020) (quoting Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011)). “We
review legal questions de novo and factual findings . . . for substantial evidence.”
Mairena v. Barr, 917 F.3d 1119, 1123 (9th Cir. 2019). “Under the substantial
evidence standard, ‘administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Id.(quoting 8 U.S.C. § 1252(b)(4)(B)).
1. The agency correctly determined that Velasco-Barragan’s asylum
application was time-barred.1 Generally, an applicant must show by clear and
convincing evidence that his asylum application was filed within one year of his
arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Velasco-Barragan filed his
application on November 30, 2016—about sixteen years after entering this
country. The agency may consider a late application where “changed
1
Contrary to the Government’s assertion, the agency’s untimeliness
determination did not “rest[] on the IJ’s resolution of an underlying factual
dispute.” Sumolang v. Holder, 723 F.3d 1080, 1082 (9th Cir. 2013). Accordingly,
we have jurisdiction to review that determination. Id. at 1083.
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circumstances . . . materially affect the applicant’s eligibility for asylum.” Singh v.
Holder, 656 F.3d 1047, 1052 (9th Cir. 2011) (citing 8 U.S.C. § 1158(a)(2)(D) and
8 C.F.R. § 1208.4(a)(4)(i), (5)). However, that Velasco-Barragan’s brothers were
the victims of random violent crime in Mexico does not constitute such “changed
circumstances.” See Hussain v. Rosen, 985 F.3d 634, 646 (9th Cir. 2021)
(recognizing that a fear of “generalized violence” does not give rise to eligibility
for asylum).
2. Substantial evidence supports the agency’s determination that
Velasco-Barragan was ineligible for withholding of removal because he failed to
establish a “clear probability” of persecution “because of” a protected ground.
Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (first quoting INS v. Stevic,
467 U.S. 407, 430 (1984); and then quoting 8 U.S.C. § 1231(b)(3)). Velasco-
Barragan claimed membership in two particular social groups: (1) “long-term
residents of the United States deported to Mexico” and (2) “immediate family
members of [his brother] Doctor Rafael Velasco-Barragan.” The agency correctly
determined that Velasco-Barragan’s first proposed social group lacked sufficient
particularity to qualify as a protected ground for the same reasons discussed in
Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010). In any event, Velasco-
Barragan failed to establish that his membership in either social group would be “a
reason” for the harm he feared in Mexico. See Barajas-Romero v. Lynch, 846 F.3d
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351, 360 (9th Cir. 2017). He thus failed to demonstrate any nexus to a protected
ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (noting that an
applicant’s “desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground”).
3. Substantial evidence also supports the agency’s denial of CAT
protection. While Velasco-Barragan did present evidence of increasing violence in
Mexico—including against deportees from the United States—he failed to
establish that it is “more likely than not” that he will be tortured upon his return.
Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010) (quoting 8 C.F.R.
§ 1208.16(c)(2)).
4. Finally, while this Court “lack[s] jurisdiction to review the [agency]’s
subjective, discretionary determination that [Velasco-Barragan] did not
demonstrate ‘exceptional and extremely unusual hardship’” as required for
cancellation of removal, Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
2005) (quoting 8 U.S.C. § 1229b(b)(1)(D)), we retain jurisdiction to review
“constitutional claims or questions of law” related to that determination, 8 U.S.C.
§ 1252(a)(2)(D). None of Velasco-Barragan’s legal challenges requires us to grant
his petition. The record indicates that Velasco-Barragan received a full and fair
hearing before the IJ. Contrary to Velasco-Barragan’s assertions, the IJ did not
limit relevant, non-cumulative testimony during the proceeding, and she expressly
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considered all relevant evidence in making her hardship determination. While the
IJ did share some concerns about the emotional toll that testifying would take on
Velasco-Barragan’s young son, she was clear that the decision on whom to call
remained with Velasco-Barragan and his lawyer. Velasco-Barragan’s due process
claim is thus without merit. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir.
2011) (“A court will grant a petition on due process grounds only if the proceeding
was ‘so fundamentally unfair that the [applicant] was prevented from reasonably
presenting his case.’” (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th
Cir. 2006))).
PETITION DENIED.
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