Jerson Del Cid-Chinchilla v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERSON ESTUARDO DEL CID- No. 19-71173
CHINCHILLA, AKA Jerson Estuardo,
Agency No. A088-349-253
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 5, 2020
Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,** District
Judge.
Petitioner Jerson Estuardo Del Cid-Chinchilla (“Petitioner”) petitions for
review of the Board of Immigration Appeals (“BIA”)’s decision dismissing his
appeal of the Immigration Judge (“IJ”)’s denial of a continuance and denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
applications for withholding of removal and for relief under the Convention
Against Torture Act (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a). We
review questions of law de novo. Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th
Cir. 2014). Factual determinations are upheld “‘if supported by reasonable,
substantial and probative evidence on the record as a whole.’” Mendoza-Alvarez v.
Holder, 714 F.3d 1161, 1163 (9th Cir. 2013) (quoting Tamang v. Holder, 598 F.3d
1083, 1088 (9th Cir. 2010)). For the reasons discussed below, we deny the petition
for review.
1. Petitioner first contends that the agency abused its discretion in denying
and upholding his oral request for a continuance without discussing the factors
identified in Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009). We review the
denial of a continuance for an abuse of discretion. Id. at 1012. An IJ may grant a
continuance for “good cause shown.” 8 C.F.R. § 1003.29. A “decision to grant or
deny the continuance is within the sound discretion of the judge and will not be
overturned except on a showing of clear abuse.” Ahmed, 569 F.3d at 1012(quotations and citations omitted).
While the agency did not cite to Ahmed, we conclude that the agency
conducted a proper inquiry into whether good cause existed in this case. See id. at
1014. The IJ noted that Petitioner had been in proceedings since 2013, had notice
of the merits hearing for approximately two years, failed to timely provide his new
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attorney documents necessary to prepare for the merits hearing, and unreasonably
failed to make a request for a continuance until the date of the merits hearing. Id.
at 1012 (“When reviewing an IJ’s denial of a continuance, we consider a number
of factors, including: (1) the nature of the evidence excluded as a result of the
denial of the continuance, (2) the reasonableness of the immigrant’s conduct, (3)
the inconvenience to the court, and (4) the number of continuances previously
granted.”). On this record, the agency did not abuse its discretion in denying the
continuance.
2. Second, Petitioner asserts that the BIA articulated and applied the
incorrect standard of nexus for his withholding of removal claim. We agree that
the BIA incorrectly articulated the standard of persecution required for asylum
instead of the standard of persecution required for withholding of removal. See
Barajas-Romero v. Lynch, 846 F.3d 351, 358-60 (9th Cir. 2017) (explaining that
for asylum eligibility, persecution “on account of” requires that the protected
ground be “one central reason” for the persecution, whereas, for withholding of
removal eligibility, the protected ground need only be “a reason” for the
persecution). We also agree that the IJ failed to articulate the standard it applied in
its withholding of removal analysis.
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However, Petitioner has not shown he was prejudiced by these procedural
errors. See Vides–Vides v. INS, 783 F.2d 1463, 1467 n.2 (9th Cir. 1986) (noting
that the IJ erred in stating that petitioner did not hold a political opinion, but
concluding the error was harmless because petitioner failed to show he would be
singled out on account of his political opinion). Because the BIA agreed with and
incorporated the findings of the IJ “while adding its own reasoning, [this Court
will] review both decisions.” Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir.
2016). We conclude that the IJ’s factual finding that there was no evidence of
nexus is supported by substantial evidence, even under the correct standard.
3. Petitioner next challenges the agency’s denial of his CAT claim. For
protection under CAT, the applicant must “establish that it is more likely than not
that he or she would be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2). Additionally, an applicant for CAT protection must show
that the torture would occur “by or at the instigation of[,] or with the consent or
acquiescence of[,] a public official or other person acting in an official capacity.”
Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003) (citing 8 C.F.R. §
208.18(a)(1)). The IJ’s factual finding that Petitioner could live in other parts of
Guatemala without harm and that Petitioner had not submitted evidence of
government acquiescence is supported by substantial evidence. Al-Harbi v. INS,
242 F.3d 882, 887 (9th Cir. 2001) (noting that where the BIA adopts the IJ’s
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findings, we review the IJ’s decision). Therefore, we conclude that substantial
evidence supports the agency’s denial of CAT relief.
Petition for review DENIED.
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