Angel Diaz-Mendoza v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL ANTONIO DIAZ-MENDOZA, No. 20-70023
AKA Chayo Mendoza,
Agency No. A205-386-378
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2020**
San Francisco, California
Before: TALLMAN, MURGUIA, and CHRISTEN, Circuit Judges.
Angel Diaz-Mendoza, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and
deny in part the petition for review.
1. Petitioner missed the filing deadline by seventeen years when he
raised his asylum claim in defense of removal. The BIA did not err in finding that
Petitioner failed to show “extraordinary circumstances” to justify his failure to file
for asylum within one year of his 2002 entry into the United States. See 8 U.S.C.
§ 1158(a)(2)(B), (D). Petitioner’s testimony that his brother misinformed and
dissuaded him from seeking asylum does not constitute an “extraordinary
circumstance.” See Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003)
(“As a general rule, ignorance of the law is no excuse . . . .”) (citation omitted).
Further, Petitioner’s argument that his application delay was attributable to
possible mental incompetency was rejected as unpersuasive by the BIA and thus
presents a disputed issue of fact which we do not have jurisdiction to review.
Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (“Where the underlying
facts are disputed, . . . we lack jurisdiction to review the Board’s extraordinary
circumstances determination.”) (citations omitted). Petitioner’s changed country
conditions argument was not raised before the BIA, is therefore unexhausted, and
for that reason is not within the scope of our review. Arrey v. Barr, 916 F.3d 1149,
1157 (9th Cir. 2019) (citation omitted).
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2. The BIA did not abuse its discretion in determining that Petitioner
was ineligible for withholding of removal because his prior felony assault
conviction constituted a “particularly serious crime.” Our abuse of discretion
review of a “particularly serious crime” determination “is limited to ensuring that
the agency relied on the ‘appropriate factors’ and ‘[]proper evidence’ to reach this
conclusion.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)
(alteration in original) (citation omitted). “The applicable legal standard to
determine if a crime is particularly serious . . . requires the agency to ask whether
‘the nature of the conviction, the underlying facts and circumstances and the
sentence imposed justify the presumption that the convicted immigrant is a danger
to the community.’” Id. (citations omitted). Here, the BIA properly applied these
factors to Petitioner’s conviction. Petitioner asks us to reconsider the facts of his
conviction and reweigh the relevant factors, which we do not have jurisdiction to
do. Id. at 1077–78 (citation omitted).
3. Substantial evidence supports the BIA’s finding that Petitioner did not
meet his burden of showing more likely than not that he would be tortured if
returned to El Salvador. “Under the substantial evidence standard, the court
upholds the BIA’s determination unless the evidence in the record compels a
contrary conclusion.” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007)
(citation omitted). Petitioner’s argument that he last dressed as a woman in 2013
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does not compel us to find that the BIA’s decision is incorrect. The BIA noted that
the last alleged act of persecution occurred more than twenty years ago when
Petitioner was nineteen years old and that he had safely relocated to another part of
the country. Substantial evidence thus supports the BIA’s conclusion that
Petitioner’s likelihood of facing future torture was too speculative to give rise to
CAT relief and the danger had lessened with the passage of time.
4. We lack jurisdiction to consider Petitioner’s competency argument
because he did not exhaust this issue before the BIA. Sola v. Holder, 720 F.3d
1134, 1135–36 (9th Cir. 2013). Petitioner’s remaining arguments supporting the
merits of his claims for relief from removal are not grounds on which the BIA
relied in rendering its decision, so they are not within our scope of review. Arrey,
916 F.3d at 1157.
PETITION FOR REVIEW DISMISSED in part AND DENIED in part.
Petitioner’s Motion for Stay of Removal (ECF No. 1) is DENIED AS MOOT.
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