Angel Paris-Mendez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL PARIS-MENDEZ, No. 17-72290
Petitioner, Agency No. A205-150-737
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2020**
San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District
Judge.
Angel Paris-Mendez, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (“BIA”) denying his motion to
*
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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
remand and affirming a denial by the Immigration Judge (“IJ”) of his motion for a
continuance, his application for asylum and statutory withholding of removal under
the Immigration and Nationality Act, and his application for protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252.
We grant the petition with respect to the BIA’s denial of the petitioner’s motion to
remand, but deny it in all other respects.
To begin with, we affirm the BIA’s holding that the IJ did not abuse his
discretion in denying the petitioner’s motion for a continuance. Both reasons that
the petitioner proffered to establish “good cause” for a continuance fail. 8 C.F.R.
§ 1003.29. First, his counsel decided not to prepare for an individualized hearing
on September 20, 2016 until a few days prior, when she had five months to do so.
Clearly, this did not justify a continuance. Her failure to prepare, moreover, was
based on an unsupported and uncorroborated assumption that the U.S. Department
of Homeland Security would administratively close the case.1 Second, with respect
1
The record contradicts the petitioner’s counsel’s assertion that “the available
court records and minutes prior to September 20, 2016 did not indicate that
Petitioner was incarcerated for more than 90 days,” which disqualified the
petitioner from administrative closure. As one example among many, the IJ’s
written decision from the removal hearing on December 16, 2013 states: “although
the respondent was apparently sentenced to 180 days in prison, he indicated in his
testimony that he was released early, after having served 4.5 months.” Moreover,
in the motion that the petitioner’s counsel filed on behalf of her client to reopen the
case on November 30, 2015, she herself wrote that her client’s “arrest only resulted
2
to the assertion that the petitioner’s counsel learned for the first time on the
morning of the hearing that the petitioner identified himself as a Jehovah’s Witness
and that he allegedly suffered persecution in Mexico because of his religion, it is
puzzling that the petitioner’s counsel was so informed at the last minute, when she
had previously helped the petitioner with completing his Form I-589, Application
for Asylum and for Withholding of Removal (where his religion-based fear was
not mentioned). Also, the petitioner had multiple opportunities to mention his
religion-based fear during the four years he had been in the removal proceedings,
but he never did so. Consequently, the IJ did not abuse his discretion in denying
the request for a continuance.
In addition, we find upon de novo review that the agency did not err in
holding that the petitioner had not established an exception to the requirement to
file his asylum application within a year after the date of his arrival in the United
States.2 See 8 U.S.C. § 1158(a)(2)(B). He had not shown “[c]hanges in conditions”
in a trespassing conviction for which he served a jail sentence of four and half
months.”
2
The petitioner arrived in the United States in 2005 but did not file his asylum
application until 2015. Although we generally lack jurisdiction to review the
agency’s determination on the applicability of an exception to the one-year filing
deadline, see 8 U.S.C. § 1158(a)(3), a carve out exists for “questions of law raised
upon a petition for review,” 8 U.S.C. § 1252(a)(2)(D). Contrary to the
Government’s assertion, the instant issue qualifies as a question of law—which we
previously defined to include “review of the application of statutes and regulations
to undisputed historical facts.” Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir.
3
in Mexico, and his 2015 asylum application was not filed within a “reasonable
period” from when he allegedly learned about his brother’s criminal activity,
which occurred no later than December 2013. 8 C.F.R. § 1208.4(a)(4)(ii); see also
Husyev v. Mukasey, 528 F.3d 1172, 1178–81 (9th Cir. 2008) (holding that a 364-
day delay in filing an asylum application after the expiration of an alien’s lawful
nonimmigrant status was not a “reasonable period”). His alleged fear of
persecution based on his religious beliefs dates back to before he first entered the
United States. Also, his claim for ineffective assistance of prior counsel did not toll
his one-year filing requirement, because he cannot show prejudice from any
deficient performance given that his fear of returning to Mexico was neither
subjectively genuine nor objectively reasonable, based on adverse credibility
determinations discussed below.
Substantial evidence supports the agency’s decision to deny the application
for asylum and statutory withholding of removal based on adverse credibility
determinations. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). For
instance, the petitioner could not give consistent answers regarding when he
2007) (footnote omitted); see also Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,
1068 (2020). The agency’s determination did not depend on a resolution of an
inconsistent fact in the record regarding when the petitioner learned of his
brother’s gang affiliation. Rather, it held that, even under the most generous
assumption regarding when the petitioner learned as much, his asylum application
was not timely, and the agency also relied on the undisputed fact that his alleged
fear based on religion existed prior to entering in the United States.
4
learned of his brother’s affiliation with the Los Zetas cartel and why he wanted to
remain in the United States. Furthermore, his professed faith in Jehovah’s
Witnesses was contradicted by his inability to name the church he claimed to have
attended for at least ten years and his failure to obtain a replacement after allegedly
losing a blood card. Most damaging to his credibility, the petitioner failed to
mention anything about his fear of returning to Mexico based on his brother’s gang
membership or his religion during the earlier years of his proceeding. Such
credibility determinations strongly support the finding that the petitioner had not
established that, on account of protected grounds, he had suffered past persecution,
had a well-founded fear of future persecution, or faced “clear probability that his
life or freedom would be threatened,” Shrestha, 590 F.3d at 1039 (quotation marks
and citation omitted), if removed. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A),
1231(b)(3)(A).
Furthermore, substantial evidence supports the agency’s determination that
the petitioner did not qualify for CAT protection, because he failed to show that “it
[was] more likely than not that he . . . would be tortured if removed” to Mexico. 8
C.F.R. § 1208.16(c)(2). The petitioner never claimed to have been a victim of
torture in Mexico. See 8 C.F.R. § 1208.16(c)(3)(i). Also, the likelihood that the
petitioner would face torture because of his association with his brother is entirely
speculative, because, inter alia, none of his family members living in Mexico had
5
suffered any harm and the petitioner had not maintained contact with his brother.3
The petitioner’s assertion of generalized fear based on the 2015 Human Rights
Report for Mexico and other articles related to Mexican cartels fails to establish
that he faced a sufficient individualized risk of torture. See Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).
Notwithstanding all the above, however, we find that the BIA abused its
discretion in denying the petitioner’s motion for remand. After the IJ rendered his
decision, the petitioner married a then-lawful permanent resident of the United
States and moved the BIA to remand his case on the ground that he was entitled to
new relief previously unavailable. See 8 C.F.R. § 1003.2(c)(1), (4). In his motion,
the petitioner included copies of his marriage certificate; a filing receipt for his
wife’s Form N-400, Application for Naturalization; an affidavit by his wife
describing the history of their relationship; and his visa application packet
3
An application for CAT protection is an “analytically separate” claim from
an application for asylum and statutory withholding of removal. Almaghzar v.
Gonzales, 457 F.3d 915, 921 (9th Cir. 2006) (citing Kamalthas v. INS, 251 F.3d
1279, 1283 (9th Cir. 2001)). Although the BIA could have more clearly separated
the analyses of the two by relying less on the adverse credibility findings for
asylum and withholding claims to uphold the IJ’s denial of application for CAT
protection, such shortcoming was overcome in two respects. First, the IJ
independently analyzed the CAT claim under the CAT framework, without
invoking adverse credibility determinations made in the context of analyzing the
asylum and withholding claims. Second, the BIA’s statement that “[a] general fear
of societal violence is not sufficient to establish a clear probability of torture”
shows that the BIA did not entirely subsume the CAT analysis under the asylum
and withholding analysis, the main concern in Kamalthas.
6
including Form I-130, Petition for Alien Relative. In denying the motion for
remand, the BIA abused its discretion in holding that the respondent “has not
shown that the visa petition has actually been filed and is pending,” while ignoring
the submitted copy of the visa application packet, which contained prima facie
evidence supporting the availability of the relief sought. Cf. Najmabadi v. Holder,
597 F.3d 983, 986 (9th Cir. 2010) (holding that the BIA may deny a motion to
reopen, which has the same standard as when ruling on a motion to remand, on
grounds of “failure to establish a prima facie case for the relief sought” or “failure
to introduce previously unavailable, material evidence” (quotation marks and
citation omitted)). In addition, the BIA abused its discretion in holding that the
petitioner had not demonstrated that his wife was eligible for naturalization, when
he submitted evidence that his wife had a pending application for naturalization in
front of the U.S. Citizenship and Immigration Services.4
Accordingly, the petition for review is GRANTED IN PART with respect
to the BIA’s denial of the petitioner’s motion to remand, and the matter is
remanded to the BIA with instructions that it reevaluate the petitioner’s motion to
remand for consideration of the petitioner’s eligibility for new relief, based on his
marriage, previously unavailable. The petition is otherwise DENIED.
The parties are to bear their own costs.
4
Indeed, the petitioner’s spouse is now a United States citizen.
7