Jose Elias-Ruiz v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ELIAS-RUIZ, No. 19-70799
19-70817
Petitioner,
Agency No. A074-387-988
v.
ROBERT M. WILKINSON, Acting MEMORANDUM*
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 4, 2021**
Pasadena, California
Before: TALLMAN and CALLAHAN, Circuit Judges, and CHRISTENSEN,***
District Judge.
Jose Elias-Ruiz (“Elias”), a native and citizen of Mexico, petitions for
review of two orders of the Board of Immigration Appeals (“BIA”) in this
*
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 Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
consolidated case. He petitions for review of the BIA’s order dismissing his
appeal from an immigration judge’s (“IJ”) denial of his motion to reopen his
exclusion proceedings. He also petitions for review of the BIA’s order dismissing
his appeal from an IJ’s decision denying his applications for withholding of
removal and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and deny in part the
petitions for review.
1. The BIA did not err in concluding that the IJ lacked jurisdiction over
Elias’s motion to reopen his underlying exclusion proceedings. “Although we
review the BIA’s denial of a motion to reopen for an abuse of discretion, purely
legal questions receive de novo review.” Padilla Cuenca v. Barr, 956 F.3d 1079,
1084 (9th Cir. 2020) (citation omitted). While 8 U.S.C. § 1229a(c)(7) “provides
that every alien ordered removed from the United States has a right to file one
motion to reopen his or her removal proceedings,” 8 U.S.C. § 1231(a)(5) “provides
that an alien forfeits that right by reentering the country illegally.” Id. at 1085(citations omitted).
Elias argues that § 1231(a)(5) should not bar his application to reopen under
§ 1229a(c)(7) because § 1231(a)(5) does not bar applications to reopen based on a
lack of notice under § 1229a(b)(5)(c)(ii) and both subsections of § 1229 do not
impose time limits on filing. While Elias is correct that both subsections allow
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filing at any time, applications to reopen based on a lack of notice under §
1229a(b)(5)(c)(ii) evade § 1231(a)(5)’s bar because of “potential due process
concerns.” Miller v. Sessions, 889 F.3d 998, 1002–03 (9th Cir. 2018). Those due
process concerns are not present here. Because Elias unlawfully reentered the
United States in 1997 despite his prior removal order, he “forfeit[ed] the right to
reopen under § 1229a(c)(7)” and is subject to “the less favorable legal regime”
under § 1231(a)(5). Padilla Cuenca, 956 F.3d at 1087–88. Accordingly, the BIA
correctly found that § 1231(a)(5) bars Elias from “reopen[ing] his prior removal
order under § 1229a(c)(7).” Id. at 1087.
2. Substantial evidence supports the BIA’s finding that Elias did not
establish a clear probability of persecution if he is returned to Mexico. “[O]ur
review ‘is limited to the BIA’s decision, except to the extent the IJ’s opinion is
expressly adopted.’” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)
(quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). Substantial
evidence supports the agency’s determination that Elias failed to establish that the
single incident, in which he was not physically harmed, rose to the level of
persecution. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088–89 (9th Cir.
2005) (finding persecution when a police officer physically harmed petitioner nine
times because of his particular social group).
3. Substantial evidence supports the BIA’s finding that Elias did not
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establish a nexus between past or feared future persecution and any claimed
statutorily-protected ground. Elias argues that he was persecuted because he was a
returnee to Mexico who had lived in the United States. However, Elias failed to
show a nexus to his alleged social group as he did not provide any evidence that
the police officers knew or cared whether he was a returnee when they attempted
to extort him. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992); Barajas-
Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017). Substantial evidence also
supports the BIA’s conclusion that Elias did not establish a cognizable social group
of “returnees to Mexico who have lived in the United States.” See Delgado-Ortiz
v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (finding that “returning
Mexicans from the United States . . . is too broad to qualify as a cognizable social
group”). Substantial evidence supports the BIA’s finding that Elias “cannot
establish a nexus based on family membership simply because the family exists
and some family members have experienced harm.” See Ayala v. Holder, 640 F.3d
1095, 1097 (9th Cir. 2011). Substantial evidence also supports the BIA’s
conclusion that Elias did not establish persecution because of actual or imputed
political opinion against cartels. See Garcia-Milian v. Holder, 755 F.3d 1026,
1031–32 (9th Cir. 2014).
4. Substantial evidence supports the BIA’s denial of CAT relief. Elias
failed to show that it is more likely than not that he would be tortured by or with
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the consent or acquiescence of the government if returned to Mexico. See
Delgado-Ortiz, 600 F.3d at 1152.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
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