Eliseo Jimenez-Alvarez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISEO JIMENEZ-ALVAREZ, No. 21-70640
Petitioner, Agency No. A206-406-731
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2022**
Pasadena, California
Before: FRIEDLAND and KOH, Circuit Judges, and KORMAN,*** District
Judge.
Eliseo Jimenez-Alvarez (“Petitioner”) petitions for review of an order of the
Board of Immigration Appeals (“BIA”) dismissing an appeal from a decision of
*
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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
the Immigration Judge (“IJ”) denying his applications for withholding of removal
and protection under the Convention Against Torture (“CAT”). We dismiss the
petition in part and deny it in part.1
Petitioner contends that he will more likely than not face persecution on
account of his membership in his family if he returns to Mexico. The IJ and BIA
rejected this claim, reasoning that even assuming the Jimenez-Alvarez family were
a cognizable social group, Petitioner had failed to demonstrate a clear probability
of harm on account of his family membership. Substantial evidence supports that
conclusion.2 Petitioner bases his claim on the murders of two of his brothers in
Mexico in 1989 and 1991. The first brother, a former police officer, was killed by
gang members. The second brother was killed for refusing to engage in corruption
while serving as auxiliary mayor of his hometown; it is unclear whether he was
killed by the mayor or by police officers who worked for the mayor. Petitioner
testified that people connected with each of these murders threatened to kill
members of his family if the family pursued legal action against the killers. At
least some of these threats appear to have continued to the present day.
1
Petitioner’s unopposed motion to submit this case on the briefs (Docket
No. 29) is granted.
2
Because we hold that this aspect of the BIA’s reasoning is supported by
substantial evidence, we need not address the BIA’s conclusion, in the alternative,
that Petitioner’s family is not a cognizable “particular social group” under 8 U.S.C.
§ 1101(a)(42).
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Nevertheless, Petitioner’s mother and father have remained in Mexico for three
decades since the threats began, and there is no evidence that they or any other
members of the family have been harmed. The record thus does not compel the
conclusion that Petitioner would more likely than not suffer persecution in Mexico
on account of his family membership. See Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019) (“Under [the substantial evidence] standard, we must
uphold the agency determination unless the evidence compels a contrary
conclusion.”).
Substantial evidence also supports the agency’s determination that Petitioner
is not eligible for CAT relief. To support his CAT claim, Petitioner relies on his
brothers’ murders and on generalized country reports about violence in Mexico.
Petitioner’s evidence does not compel the conclusion that he will more likely than
not be tortured by or with the acquiescence of government officials if he returns to
Mexico. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010)
(holding that “generalized evidence of violence and crime in Mexico [that was] not
particular to Petitioners [was] insufficient to meet [the CAT] standard”).
Finally, we lack jurisdiction to review Petitioner’s argument, raised for the
first time in his petition for review, that the IJ lacked jurisdiction over his removal
proceedings because the Notice to Appear omitted the time and date of the initial
hearing. We therefore dismiss the petition to the extent it raises an unexhausted
3
challenge to the IJ’s jurisdiction. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004).
Petition for review DISMISSED in part and DENIED in part.
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