Gaspar-Salvador 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NOT FOR PUBLICATION FILED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
GREGORIO GASPAR-SALVADOR; No. 21-1317
CANDELARIO GASPAR-ANTONIO, Agency Nos.
A070-789-151
Petitioners, A209-164-932
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.***
Gregorio Gaspar-Salvador and his son, Candelario Gaspar-Antonio,
(collectively, “Petitioners”) are natives and citizens of Guatemala. They timely
*
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.
petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) denial of their
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We review de novo legal conclusions
and review for substantial evidence factual findings. Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). We deny the petition.
1. The government properly initiated Petitioners’ cases even though the
initial notices to appear omitted the place, date, and time of their hearing. In
United States v. Bastide-Hernandez, 39 F.4th 1187 (9th Cir. 2022) (en banc),
cert. denied, 143 S. Ct. 755 (2023), we held that a defective notice to appear—
“which initiated the immigration proceedings”—did not deprive the
immigration court of authority to act and did not divest the immigration court of
subject-matter jurisdiction when the notice was later supplemented with the
missing information. 39 F.4th at 1188, 1193 & n.9. Here, Petitioners received
supplemental notices and attended their hearing.
2. Substantial evidence supports the BIA’s conclusion that Petitioners’
asylum applications were time-barred. An asylum application must be filed
within one year of the applicant’s last arrival into the United States. 8 U.S.C.
§ 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). An exception to that deadline exists
for applicants who can demonstrate “extraordinary circumstances relating to the
delay.” 8 U.S.C. § 1158(a)(2)(D); see also 8 C.F.R. § 1208.4(a)(5) (describing
“events or factors directly related to the failure to meet the 1–year deadline” that
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may qualify as extraordinary circumstances). Before the IJ and the BIA,
Petitioners argued only that an exceptional circumstance existed because they
had to work to feed themselves and thus were unable to meet with counsel to
finalize their applications. Those facts do not compel the conclusion that
Petitioners faced extraordinary circumstances. See Toj-Culpatan v. Holder, 612
F.3d 1088, 1091 (9th Cir. 2010) (per curiam) (holding that extraordinary
circumstances did not exist because the petitioner’s challenges constituted
ordinary circumstances for many immigrants).
In their briefing to this court, Petitioners argue for the first time that their
lawyer reasonably chose to file their applications late because the filing
coincided with the date of their master-calendar hearing. Because Petitioners
failed to raise that argument before the BIA, the argument was waived or
forfeited. See Santos-Zacaria v. Garland, No. 21-1436, 2023 WL 3356525, at
*8 (U.S. May 11, 2023) (holding that, although 8 U.S.C. § 1252(d)(1)’s
exhaustion requirement is not jurisdictional, it is still subject to the rules
regarding waiver and forfeiture). We decline to exercise our discretion to
consider the issue on the merits.
3. Substantial evidence supports the BIA’s denial of Petitioners’
applications for withholding of removal on the ground that Petitioners could
avoid future harm by relocating within Guatemala. Petitioners testified that it
would be possible for them to live in a different part of Guatemala if they were
to return. Although Petitioners may face challenges in finding employment and
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housing, that fact does not compel the conclusion that internal relocation would
be unreasonable. See 8 C.F.R. § 1208.16(b)(3)(iii) (when a petitioner asserts
persecution by private actors, “there shall be a presumption that internal
relocation would be reasonable unless the applicant establishes, by a
preponderance of the evidence, that it would be unreasonable to relocate”); see
also Hussain v. Rosen, 985 F.3d 634, 649 (9th Cir. 2021) (“That relocation
might be inconvenient or undesirable does not make it unreasonable.”).
4. Substantial evidence supports the BIA’s denial of Petitioners’ CAT
claims on the ground that Petitioners failed to show that they would be tortured
by, or “with the consent or acquiescence of, a public official.” 8 C.F.R.
§ 1208.18(a)(1). Reporting to the police is not a requirement to bring a CAT
claim, Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th Cir. 2006), but
Petitioners must establish that a “public official is aware that torture of the sort
feared by the applicant occurs and [the public official] remains willfully blind to
it,” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020). The record
does not compel the conclusion that officials in Guatemala were willfully blind
to a risk of torture faced by Petitioners.
5. To prevail on the claim that his due process rights were violated
because the IJ allegedly prejudged his case, Gaspar-Antonio “must show that
the denial of his . . . right to a neutral fact-finder potentially affected the
outcome of the proceedings.” Arrey v. Barr, 916 F.3d 1149, 1159 (9th Cir.
2019) (citation and internal quotation marks omitted). Although the IJ
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repeatedly shared his doubts that Gaspar-Antonio would be able to meet the
necessary burden of proof, the IJ heard Gaspar-Antonio’s testimony over the
course of two hearings and continued to express his willingness to be persuaded
otherwise. The evidence in the record does not compel the conclusion that “the
IJ had a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir.
2007). And even if Gaspar-Antonio were able to show bias, he would be unable
to show prejudice: the record supports the conclusion that Gaspar-Antonio is
not eligible for relief. See id. (“[I]f the factual record adequately supports the
denial of an . . . application for relief, we cannot find that the alleged bias held
by the IJ was the basis for the denial of the application.”).
Petition DENIED. The stay of removal will remain in place until the
mandate issues.
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