Elmer Mendez-Juarez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER MENDEZ-JUAREZ, No. 20-73275
Petitioner, Agency No. A201-906-203
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 25, 2022**
San Francisco, California
Before: GRABER and WARDLAW, Circuit Judges, and BAKER,*** International
Trade Judge.
Elmer Alfonso Mendez-Juarez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (BIA) decision dismissing his
*
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 M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
appeal of an Immigration Judge’s (IJ) order denying his motion to reopen
proceedings under 8 C.F.R. § 1003.23(b)(3) as numerically barred. We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
1. The BIA did not abuse its discretion in concluding that Mendez-
Juarez’s motion to reopen was numerically barred. Mendez-Juarez submitted a
motion to reopen on February 10, 2020, which was denied by the IJ for failure to
attach an application for relief. Mendez-Juarez then submitted a second motion to
reopen on March 6, 2020. Although the second motion to reopen included the
required application for relief, each applicant is allowed to file only one motion to
reopen pursuant to 8 C.F.R. § 1003.23(b)(1). Therefore, the second motion to
reopen was numerically barred.
2. Even assuming that the BIA abused its discretion by failing to
consider whether it should apply equitable tolling to the numerical bar, see Socop-
Gonzalez v. I.N.S., 276 F.3d 1173, 1183–84 (9th Cir. 2001) (en banc), overruled on
other grounds by Smith v. Davis, 953 F.3d 582, 599 (9th Cir. 2020) (en banc), the
BIA did not abuse its discretion in concluding that Mendez-Juarez failed to
establish prima facie eligibility for relief, see Ordonez v. I.N.S., 345 F.3d 777, 785
(9th Cir. 2003).
To establish prima facie eligibility for asylum, Mendez-Juarez needed to
show that he is a refugee, meaning that he either suffered past persecution or has a
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well-founded fear of future persecution on account of a protected ground. Mendez-
Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir. 2003). In his application for
relief, Mendez-Juarez references threats received from his stepfather before he was
kicked out, threats from his stepfather’s brothers should his stepfather go to jail,
and threats from his wife’s new partner should Mendez-Juarez attempt to reunite
with her. However, persecution is “an extreme concept,” see Sharma v. Garland, 9
F.4th 1052, 1060 (9th Cir. 2021), and threats alone generally “do not rise to the
level of persecution,” see id. at 1062 (internal citations and quotation marks
omitted). Therefore, the application fails to allege past persecution. The
application also fails to identify a proposed social group that Mendez-Juarez claims
is the reason for his persecution. Mendez-Juarez asserts a generalized fear of
attacks, kidnapping, or extortion because of an assumption that he has money as an
arrival from the United States. But as the BIA notes, this is a “general statement”
for which Mendez-Juarez provides no support and therefore does not demonstrate a
“well-founded” fear of future persecution. Thus, the BIA did not abuse its
discretion in concluding that Mendez-Juarez failed to establish prima facie
eligibility for asylum. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010)
(explaining that we “defer to the BIA’s exercise of discretion unless it acted
arbitrarily, irrationally, or contrary to law”).
Because Mendez-Juarez failed to allege past persecution on account of an
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enumerated ground, his withholding of removal claim fails too. See Sanjaa v.
Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017).
To show prima facie eligibility for relief under the Convention Against
Torture (CAT), Mendez-Juarez must present evidence that it is more likely than
not that he would be tortured by a government official or that the government
would acquiesce in his torture by others. See Wakkary v. Holder, 558 F.3d 1049,
1067–68 (9th Cir. 2009). Mendez-Juarez’s application for relief does not allege
that he would be tortured if returned to Guatemala, or that the government would
be the cause of or acquiesce in his torture. Therefore, the BIA did not act
“arbitrarily, irrationally, or contrary to law” in concluding that Mendez-Juarez is
ineligible for CAT relief. See Najmabadi, 597 F.3d at 986.
PETITION FOR REVIEW DENIED. 1
1
Mendez-Juarez’s motion for a stay of removal (Dkt. 1) is DENIED as
moot.
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