Eleazar Perez v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 15 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELEAZAR PEREZ, AKA Perez Aquino, Nos. 18-70595
18-72781
Petitioner,
Agency No. A208-836-681
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 11, 2021**
San Francisco, California
Before: McKEOWN, IKUTA, and BRESS, Circuit Judges.
Eleazar Perez, a native and citizen of Mexico, seeks review of a decision of
the Board of Immigration Appeals (BIA) affirming the decision of an Immigration
Judge (IJ) to deny Perez’s application for asylum, withholding of removal, and
*
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).
relief under the Convention Against Torture (CAT). Perez also seeks review of the
decision of the BIA to deny Perez’s motion to reopen and terminate proceedings.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny both petitions for
review.
The lack of a date and time for a hearing on Perez’s notice to appear did not
deprive the immigration court of jurisdiction, because Perez did not contest that he
later received a notice of hearing and Perez attended his initial and subsequent
immigration hearings. See Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir.
2019). Perez’s argument that Kisor v. Wilkie, 139 S. Ct. 2400 (2019), superseded
Karingithi is misplaced, because we are bound by subsequent decisions that
continue to apply Karingithi. See United States v. Bastide-Hernandez, 986 F.3d
1245, 1247–48 (9th Cir. 2021); Aguilar Fermin v. Barr, 958 F.3d 887, 893–95 (9th
Cir. 2020); see also Silva v. Barr, 965 F.3d 724, 735 (9th Cir. 2020).
Two independent statutory bars render Perez ineligible for asylum. First,
Perez’s 2017 asylum application is untimely, because Perez failed to file it within
one year of his 1992 arrival in the United States. See 8 U.S.C. § 1158(a)(2)(B).
Perez’s unawareness of asylum relief, letters from former neighbors in Mexico,
and recent contact from his father do not materially affect Perez’s eligibility for
asylum or excuse his delay in filing a timely application, and therefore Perez failed
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to demonstrate the existence of changed or extraordinary circumstances that would
allow the agency to consider his untimely asylum application. See 8 U.S.C.
§ 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)(i); Al Ramahi v. Holder, 725 F.3d 1133,
1135 (9th Cir. 2013).
Second, Perez waived any challenge to the IJ’s determination that Perez’s
conviction under Section 245(a)(4) of the California Penal Code constituted a
particularly serious crime that rendered Perez ineligible for asylum under 8 U.S.C.
§ 1158(b)(2)(A)(ii), because Perez failed to raise the argument in his opening brief.
Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). Even if Perez had raised
the argument on appeal, we lack jurisdiction to disturb the determination of the IJ,
because Perez did not challenge the IJ’s determination before the BIA. See Arsdi
v. Holder, 659 F.3d 925, 928–30 (9th Cir. 2011).
Substantial evidence supports the denial of Perez’s application for
withholding of removal. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b); Sanjaa
v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017). Perez failed to show that the
Mexican government was unable or unwilling to protect him from his father or the
threats to his family made by a cartel that kidnaped his uncle. See Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1062–69 (9th Cir. 2017) (en banc). Perez’s
father’s attempted social-media contact with Perez does not support a likelihood of
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future persecution, because Perez is no longer a child, Perez’s father’s whereabouts
remain unknown, and Perez’s father’s communication was not threatening.
Finally, Perez failed to demonstrate a well-founded fear of future cartel violence;
the unspecific, vague letters from former neighbors in Mexico do not constitute
compelling evidence of a likelihood of future persecution, and his fear of
generalized violence and strife is not sufficiently particular to Perez to warrant
withholding of removal. See Lolong v. Gonzales, 484 F.3d 1173, 1179–80 (9th
Cir. 2007) (en banc).
Finally, substantial evidence supports the denial of CAT relief. 8 C.F.R.
§ 1208.16(c)(2)–(4); Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir.
2014). Because the Mexican government “does not acquiesce in the torture of its
citizens merely because it is aware of torture but powerless to stop it,” Garcia-
Milian, 755 F.3d at 1034 (quoting Mouawad v. Gonzales, 485 F.3d 405, 413 (8th
Cir. 2007)), the record evidence does not compel the conclusion that it is more
likely than not that Perez would be tortured upon his return to Mexico. 8 C.F.R. §
1208.16(c)(2)–(4).
PETITIONS DENIED.
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