Domingo Manuel-Tomas v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 23 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOMINGO MANUEL-TOMAS, AKA No. 18-70087
Juan Martinez-Eduardo,
Agency No. A205-707-454
Petitioner,
v. MEMORANDUM*
MERRICK GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 19, 2021**
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LYNN,*** Chief District
Judge.
*
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 Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
Domingo Manuel-Tomas, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal
from the Immigration Judge’s (IJ) order denying asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). We review questions of
law de novo and factual findings for substantial evidence. Brezilien v. Holder, 569
F.3d 403, 411 (9th Cir. 2009). We have jurisdiction pursuant to 8 U.S.C. §
1252(a), and we deny the petition.1
1. The immigration court properly exercised jurisdiction over Manuel-
Tomas’s removal proceeding. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018),
Manuel-Tomas argues the agency never had jurisdiction to remove him because his
Notice to Appear was defective. This argument is foreclosed by Karingithi v.
Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019) (“A notice to appear need not
include time and date information to . . . [meet] the regulatory requirements and . . .
[vest] jurisdiction in the [Immigration Judge].”). Manuel-Tomas also argues the IJ
lacked personal jurisdiction under the Federal Rules of Civil Procedure. The Rules
do not apply in immigration court. Matter of Benitez, 19 I. & N. Dec. 173, 174
(BIA 1984). Manuel-Tomas further argues the regulations defining jurisdiction are
1
Because the parties are familiar with the facts, we recite only those facts
necessary to decide the petition.
2
ultra vires as a result of 8 U.S.C. § 1229(a). This argument is misplaced because,
as Karingithi recognized, “the regulations, not § 1229(a), define when jurisdiction
vests. Section 1229 says nothing about the Immigration Court’s jurisdiction.” 913
F.3d at 1160.
2. Manuel-Tomas argues the IJ erred by denying his motion to suppress
evidence obtained as a result of his arrest by Customs and Border Protection
(CBP). In particular, he argues the I-213 and his statements to CBP should have
been suppressed because they were obtained through an egregious violation of his
Fourth Amendment rights. See Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir.
2018). Manuel-Tomas fails to explain the key discrepancy the IJ relied on in
denying the motion: he gave a sworn statement the day after he was arrested in
which he indicated he was on foot when he was stopped, and then in the motion to
suppress he argued that he was subject to an unlawful vehicle stop. Manuel-Tomas
does not dispute that the I-213 is authentic. That form provides the government’s
account of Manuel-Tomas’s arrest, and states that he was stopped while he was on
foot, ten minutes north of the border, while asking passing vehicles for a ride.
Substantial evidence supports the IJ’s denial of the motion on that basis.
The government bears the burden of establishing alienage by “clear,
unequivocal and convincing evidence.” Hernandez-Guadarrama v. Ashcroft, 394
3
F.3d 674, 679 (9th Cir. 2005) (citation omitted). “Evidence of foreign birth gives
rise to a presumption that the person so born is an alien.” Corona-Palomera v.
INS, 661 F.2d 814, 818 (9th Cir. 1981). In proceedings before the IJ, Manuel-
Tomas introduced a birth certificate showing he was born in Guatemala. Because
the presumption of removability was not rebutted and because Manuel-Tomas later
admitted all the allegations in the Notice to Appear, the IJ properly concluded that
Manuel-Tomas “conceded that he was removable as charged” and thus that
removability was “established by clear and convincing evidence.” Because
Manuel-Tomas did not meet the burden of proving an egregious violation of his
Fourth Amendment rights, and in any event suffered no prejudice by the
introduction of the I-213 and his own statements because there was other record
evidence establishing alienage, we see no error in the IJ’s ruling.
3. Manuel-Tomas next argues the IJ and BIA erred by denying his
applications for asylum and withholding of removal. Because the BIA concluded
that his failure to establish asylum foreclosed his ability to prevail on the
withholding of removal claim, both claims turn on whether the BIA erred in
rejecting his asylum claim. See Ren v. Holder, 648 F.3d 1079, 1094 n.17 (9th Cir.
2011).
4
The BIA’s decision denying asylum relief was supported by substantial
evidence. In order to establish “past persecution, an applicant must show: (1) an
incident, or incidents, that rise to the level of persecution; (2) that is ‘on account
of’ one of the statutorily-protected grounds; and (3) is committed by the
government or forces the government is either ‘unable or unwilling’ to control.”
Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000). Manuel-Tomas testified that
he was attacked by men sent by his father. Manuel-Tomas offered no evidence his
attackers were motivated by religious animus. He testified that his attackers
warned him to break up with his girlfriend, but he never testified that his attackers
mentioned religion. He also testified he was unsure how his father would have
learned he converted to a Protestant denomination given that he had not spoken to
his father in the six years prior to the attack.
Even assuming a nexus to a protected ground existed, Manuel-Tomas
conceded that his family did not list his father’s name on the police report
describing the attack. He has failed to show the Guatemalan government is
unwilling or unable to control his father or the attackers. Manuel-Tomas has also
failed to establish a reasonable fear of future persecution because he concedes that
he could reasonably relocate to another part of Guatemala to avoid his father.
Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019).
5
On appeal, Manuel-Tomas argues he will be persecuted on account of his
membership in a particular social group based on “kinship and indigenous
descent.” This claim is unexhausted. Barron v. Ashcroft, 358 F.3d 674, 677–78
(9th Cir. 2004). Even if it were properly raised before the IJ and BIA, Manuel-
Tomas fails to establish a nexus between his family membership and persecution
because he has not shown other members of his family have been harmed, or are
presently at risk of being persecuted. Matter of L-E-A-, 27 I. & N. Dec. 40, 43–44
(BIA 2017), abrogated on other grounds, 27 I. & N. Dec. 581 (AG 2019).
4. Finally, Manuel-Tomas argues the IJ erred by denying relief pursuant
to the Convention Against Torture. The record does not compel a contrary
conclusion. Manuel has failed to show it is more likely than not he will be tortured
“by or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity.” Garcia-Milian v. Holder, 755 F.3d
1026, 1033 (9th Cir. 2014) (internal quotation marks and citation omitted); 8
C.F.R. § 208.18(a)(1).
PETITION FOR REVIEW DENIED.
6