De La Cruz v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAR TALAVERA DE LA CRUZ, No. 21-548
Agency No.
Petitioner, A205-312-995
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2023**
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and TUNHEIM,*** District
Judge.
Petitioner Omar Talavera De La Cruz, a native and citizen of Mexico,
timely seeks review of a Board of Immigration Appeals’ (“BIA”) order
*
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 John R. Tunheim, United States District Judge for
the District of Minnesota, sitting by designation.
dismissing his appeal from an immigration judge’s (“IJ”) denial of asylum,
withholding of removal, protection under the Convention Against Torture
(“CAT”), and cancellation of removal. We deny the petition in part and dismiss
it in part.
When the BIA adopts the decision of the IJ while adding its own
reasoning, we review both decisions and treat any additional findings by the
BIA as part of the final agency decision. Arteaga-De Alvarez v. Holder, 704
F.3d 730, 735 (9th Cir. 2012). “We review purely legal questions de novo, and
the agency’s factual findings for substantial evidence.” Perez-Portillo v.
Garland, 56 F.4th 788, 792 (9th Cir. 2022). Under the substantial evidence
standard, “administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
1. Petitioner argues that his immigration proceedings must be terminated
because the immigration court lacked jurisdiction due to a defective Notice to
Appear (“NTA”). Jurisdiction in immigration proceedings vests “when a
charging document is filed with the Immigration Court by the Service.” 8
C.F.R. § 1003.14(a). An NTA is a charging document. 8 C.F.R. § 1003.13.
Petitioner suggests that, under Pereira v. Sessions, an NTA is defective when it
fails to include the time and place of removal proceedings. 138 S. Ct. 2105,
2113–14 (2018). The NTA in Petitioner’s case did not specify the time and
place of his hearing. Thus, Petitioner argues that jurisdiction never vested in the
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immigration court.
Petitioner misconstrues the effect of Pereira on his case. We have
previously held that a defective NTA does not invalidate the jurisdiction of the
immigration court. See United States v. Bastide-Hernandez, 39 F.4th 1187,
1193 & n.9 (9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 755 (2023).
Because the agency supplemented Petitioner’s NTA with the missing
information, the immigration court properly exercised jurisdiction.
2. The BIA affirmed the IJ’s decision that Petitioner did not demonstrate
that he filed his asylum application within the one-year deadline or qualified for
an exception. Petitioner did not meaningfully challenge the BIA’s finding
before us, so the issue is waived on appeal. See Lopez-Vasquez v. Holder, 706
F.3d 1072, 1079–80 (9th Cir. 2013) (holding that a petitioner waived issues not
specifically raised and argued in an opening brief).
3. Substantial evidence supports the agency’s decision to deny
withholding of removal. We assume without deciding that “indigenous
Mexicans” or “members of the Purepecha or Tarasco group” are cognizable
particular social groups. Substantial evidence supports the BIA’s finding that
Petitioner failed to meet the “clear probability” standard required for
withholding of removal. See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir.
2010).
Petitioner did not claim that he experienced past persecution, so his claim
was based on fear of future persecution. Here, substantial evidence supports the
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BIA’s finding that Petitioner failed to establish that he would face any
individualized risk of future persecution on account of his particular social
group. Critically, none of Petitioner’s other family members who live in
Mexico have been threatened or harmed. See id. (“[A] petitioner’s fear of future
persecution ‘is weakened, even undercut, when similarly-situated family
members’ living in the petitioner’s home country are not harmed.” (citations
omitted)). We therefore deny this portion of the petition.
4. Petitioner challenges the BIA’s decision denying his CAT claim as
having relied too heavily on internal relocation. But substantial evidence
supports the BIA’s denial of Petitioner’s CAT claim because Petitioner did not
establish that he faces a particularized risk of torture or that the Mexican
government would acquiesce to any torture. Therefore, we deny his petition as
to the CAT claim.
5. Finally, Petitioner challenges the denial of cancellation of removal.
Cancellation of removal is a discretionary form of relief available to those who
are ordered removed but otherwise meet the requirements under 8 U.S.C.
§ 1229b(b)(1). Because the BIA and the IJ denied cancellation of removal
based on discretionary factors, we lack jurisdiction to review that decision
unless Petitioner raises a constitutional claim or a question of law. See 8 U.S.C.
§ 1252(a)(2)(B) (“Notwithstanding any other provision of law . . . no court shall
have jurisdiction to review . . . any judgment regarding the granting of relief
under section [1229b.]”); 8 U.S.C. § 1252(a)(2)(D) (creating an exception for
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review of constitutional claims or questions of law). Because Petitioner
challenges only the discretionary denial of relief, we dismiss for lack of
jurisdiction. See Arteaga-De Alvarez, 704 F.3d at 735 (“In cancellation of
removal cases we lack jurisdiction to ‘review [ ] the merits of a hardship
determination.’” (quoting Mendez–Castro v. Mukasey, 552 F.3d 975, 978 (9th
Cir. 2009) (alteration in original))).
PETITION DENIED in part and DISMISSED in part. The stay of
removal will remain in place until the mandate issues.
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