Victor Rizo-Rosales v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
FEB 23 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR RIZO-ROSALES, AKA Juan No. 18-72545
Ramirez Hernandez, AKA Adan Rizo,
Agency No. A079-368-044
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022**
San Francisco, California
Before: GOULD and RAWLINSON, Circuit Judges, and ADELMAN,*** 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 Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
Victor Rizo-Rosales, a.k.a. Juan Ramirez Hernandez, a.k.a. Adan Rizo
(Petitioner), a citizen of Mexico, petitions for review of the denial of his
application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition.
“We review de novo the BIA’s [Board of Immigration Appeals’]
determinations on questions of law and mixed questions of law and fact,” but “[w]e
review for substantial evidence the BIA’s factual findings.” Conde Quevedo v.
Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020) (citation omitted). Under substantial
evidence review, “[t]o reverse[,] we must find that the evidence not only supports
that conclusion, but compels it.” Zheng v. Holder, 644 F.3d 829, 835 (9th Cir.
2011) (citations and alteration omitted) (emphases in the original).
When the BIA conducts its own review of the evidence and the law, we limit
our review to the BIA decision. See Hosseini v. Gonzales, 471 F.3d 953, 957 (9th
Cir. 2006), as amended. However, if “the BIA adopts the IJ’s [Immigration
Judge’s] decision while adding some of its own reasoning, we review both
decisions.” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011)
(citation omitted).
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1. Petitioner initially challenges the BIA’s determination that he did not
satisfy the “changed circumstances” or “extraordinary circumstances” exception to
the one-year deadline for filing an asylum application. Tamang v. Holder, 598
F.3d 1083, 1088 (9th Cir. 2010) (recognizing the one-year filing deadline).
We have jurisdiction to review application of the “changed circumstances”
and “extraordinary circumstances” exceptions to the one-year deadline only if
those exceptions involve “the application of a statutory standard to undisputed
facts.” Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007); see also Husyev
v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008). The IJ properly concluded
that Petitioner did not the satisfy the “changed circumstances” or “extraordinary
circumstances” exception to the one-year deadline. Petitioner entered the United
States in January of 2005 and had until January of 2006 to apply for asylum. That
Petitioner lacked knowledge of the law, did not speak English, and had not begun
to fear criminal violence in Mexico until he was placed in removal proceedings,
did not constitute changed circumstances. See Ramadan, 479 F.3d at 657 (“The
term ‘changed circumstances’ . . . refer[s] to circumstances materially affecting the
applicant’s eligibility for asylum. . . .”) (quoting 8 C.F.R. § 208.4 (a)(4)(i)); see
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also Gasparyan v. Holder, 707 F.3d 1130, 1134-35 (9th Cir. 2013) (delineating
“extraordinary circumstances” test).1
2. Substantial evidence supports the IJ’s determination that Petitioner failed
to establish a nexus between any harm and a protected ground to support his
application for withholding of removal. Petitioner testified that he became fearful
of returning to Mexico when crime increased in the country. Petitioner stated that
his father was shot, one of his cousins “disappeared,” and a friend was tortured.
These incidents caused Petitioner to experience fear and interrupted sleep.
However, Petitioner was never harmed. Nor did he demonstrate a well-founded
fear of future harm, or that the government was unable or unwilling to protect him.
See Robleto-Pastora v. Holder, 591 F.3d 1051, 1057 (9th Cir. 2010), as amended.
Further, we have held that the “desire to be free from harassment by criminals
motivated by theft or random violence . . . bears no nexus to a protected ground.”
Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010), as amended (citations
omitted). For these reasons, substantial evidence supports the denial of
withholding of removal. See id.1
To the extent Petitioner argues that his mental health concerns constituted
extraordinary circumstances, we lack jurisdiction to review this disputed fact. See
Ramadan, 479 F.3d at 648 (holding that our jurisdiction only extends to
application of the law to undisputed facts).
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3. Because Petitioner failed to address his CAT claim in his Opening Brief,
he has waived any objections to the denial of this claim. See Martinez-Serrano v.
I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).
PETITION DENIED.
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