Gregorio Garcia-Morales v. Robert Wilkinson ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 3 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORIO GARCIA-MORALES, No. 19-72751
Petitioner, Agency No. A087-913-396
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2021**
San Francisco, California
Before: BERZON, CHRISTEN, and BADE, Circuit Judges.
Concurrence by Judge CHRISTEN
Petitioner Gregorio Garcia-Morales, a native and citizen of Mexico, appeals
the BIA’s order denying his applications for withholding of removal and relief
under the Convention Against Torture (CAT). Petitioner also challenges the BIA’s
*
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).
decision to deny his motion to remand. The motion requested further consideration
of his application for cancellation of removal in light of changed circumstances and
the Immigration Judge’s (IJ) decision to deny Petitioner’s motion for a continuance
pending the adjudication of his application for a non-immigrant U visa. We deny
the petition.
We review for substantial evidence the factual findings supporting the BIA’s
determination that a petitioner is not eligible for withholding of removal or CAT
relief, Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and review de
novo its determinations on questions of law, Rodriguez v. Holder, 683 F.3d 1164,
1169 (9th Cir. 2012). The BIA’s order denying remand is reviewed for abuse of
discretion, Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003), as is the IJ’s order
denying petitioner’s motion for a continuance, Sandoval-Luna v. Mukasey, 526
F.3d 1243, 1246 (9th Cir. 2008).
1. The BIA did not err by denying petitioner’s application for withholding
of removal. Petitioner must show a “clear probability” of persecution; that is, he
must show it is more likely than not he will be persecuted on account of a protected
ground if he is removed. Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2015)
(quoting Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003)). This is a
more exacting standard than the “well-founded fear,” 8 U.S.C. § 1101(a)(42)(A),
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of persecution necessary to support an asylum claim. See Davila v. Barr, 968 F.3d
1136, 1142 (9th Cir. 2020).
The IJ found petitioner did not suffer past persecution on account of his
membership in the proposed social group “a person threatened by a criminal who
[Petitioner] testified against in court.” Petitioner argues that he was stabbed by his
brother in 2001, that he testified against his brother, and that his brother was then
jailed and deported. Petitioner fears retribution at the hands of his brother if he is
returned to Mexico. This claim fails because petitioner could not have been
stabbed by his brother in 2001 on account of his testimony in his brother’s criminal
proceedings: those proceedings did not occur until after petitioner was stabbed.
Further, the record includes evidence that the 2001 stabbing was the result of a
personal dispute and not on account of any protected ground. Thus, petitioner
failed to establish past persecution on account of a protected ground and was not
entitled to the presumption of future persecution.
The BIA’s finding that Petitioner could safely and reasonably avoid future
persecution by relocating within Mexico was supported by substantial evidence.
See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) (“[A] perceived fear of
future persecution may be rebutted if the petitioner could relocate elsewhere in his
or her native country, and it would be reasonable to expect the petitioner to do
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so.”). Petitioner’s brother lives with their parents in Guerrero, Mexico. Petitioner
testified that, if removed, he would not return to Guerrero. The record does not
compel the finding that petitioner’s brother, a lone individual, is capable of finding
petitioner if he does not disclose his location to his family.
2. To be eligible for withholding of removal under CAT, petitioner must
show it is “more likely than not that he . . . would be tortured if removed” to
Mexico. 8 C.F.R. § 208.16(c)(2). Torture is any act that intentionally inflicts
“severe pain or suffering” on a person for the purposes of obtaining information or
a confession, punishment, intimidation, coercion, or discrimination. Id. §
208.18(a)(1). Torture must be “inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity.” Id.
The record does not compel a finding that the Mexican government would
acquiesce to petitioner being tortured. Petitioner does not contest that police in
Mexico searched for his brother after he stabbed another victim in 2010. The
fruitless investigation by Mexican police officers does not compel a finding on
acquiescence. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014)
(“Evidence that the police were aware of a particular crime, but failed to bring the
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perpetrators to justice, is not in itself sufficient to establish acquiescence in the
crime.”).
3. The BIA did not abuse its discretion by denying petitioner’s motion to
remand for further consideration. “The formal requirements of a motion to remand
and a motion to reopen are the same.” Romero-Ruiz v. Mukasey, 538 F.3d 1057,
1063 (9th Cir. 2008). Thus, in order to prevail on his motion to remand: (1)
petitioner must “state the new facts that will be proven at a hearing to be held if the
motion is granted and shall be supported by affidavits or other evidentiary
material”; (2) the new evidence must be “material”; (3) the evidence must not have
been available and would not have been discovered or presented at the previous
proceeding; and (4) petitioner must “demonstrate that the new evidence, when
considered together with the evidence presented at the original hearing, would
establish prima facie eligibility for the relief sought.” Bhasin v. Gonzales, 423
F.3d 977, 984 (9th Cir. 2005); see also INS v. Abudu, 485 U.S. 94, 97–98 (1988).
When the BIA denied petitioner’s motion for remand, it considered the new
evidence that petitioner’s wife became a lawful permanent resident after his
application for withholding was denied. Viewing this evidence in the aggregate
with what was known about the hardship petitioner’s daughter would experience if
petitioner was removed, the BIA concluded that petitioner failed to make a prima
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facie showing of exceptional and extremely unusual hardship. “The ‘exceptional
and extremely unusual hardship’ standard is a very demanding one.” Garcia v.
Holder, 621 F.3d 906, 913 (9th Cir. 2010). Because the BIA applied the correct
legal standard and considered all the appropriate evidence in the record, we
conclude its decision to deny petitioner’s motion to remand was not “arbitrary,
irrational, or contrary to law.” See Valeriano v. Gonzales, 474 F.3d 669, 672 (9th
Cir. 2007).
4. The BIA did not abuse its discretion by affirming the IJ’s decision to
deny petitioner’s motion for a continuance. In Matter of L-A-B-R-, 27 I. & N. Dec.
405 (2018), the Attorney General set forth several factors IJs should consider when
deciding whether to grant continuances to allow petitioners to pursue collateral
relief from another authority, including: (1) the likelihood that the alien will
receive the collateral relief; (2) whether the relief will materially affect the
outcome of the removal proceedings; (3) whether the alien has exercised
reasonable diligence in pursuing that relief; (4) DHS’s position on the motion; (5)
the length of the requested continuance; and (6) the procedural history of the case.
Id. at 413. The IJ must focus primarily on the first two factors. Id.
The BIA considered the factors set forth in Matter of L-A-B-R- and ruled
petitioner had not established “good cause” for a continuance. The removal
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proceedings had been pending for over six years, the basis for petitioner’s U visa
arose in 2001 but he had yet to apply for a U visa by the time of his removal
proceedings in 2016, and the government opposed the continuance. On this record,
we conclude petitioner failed to establish the BIA abused its discretion by denying
the requested continuance.
PETITION DENIED
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FILED
MAR 3 2021
Garcia-Morales v. Wilkinson, No. 19-72751
CHRISTEN, Circuit Judge, concurring MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree petitioner cannot prevail on his claim that the BIA erred by denying
his motion to remand, but I would dismiss that portion of the petition. In my view,
we lack jurisdiction to review the BIA’s determination because the evidence
submitted does not address “a hardship ground so distinct from that considered
previously as to make the motion to [remand] a request for new relief.” See
Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006).