Raquel Flores-Cedillo v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAQUEL FLORES-CEDILLO, No. 19-73223
Petitioner, Agency No. A091-246-482
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2021**
Pasadena, California
Before: PAEZ and VANDYKE, Circuit Judges, and KORMAN,*** District Judge.
Petitioner Raquel Flores-Cedillo, a citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) denial of her motion to continue and claim for protection under the
*
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 Edward R. Korman, United States District Judge for the Eastern
District of New York, sitting by designation.
Convention Against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition.
1. The IJ was within her discretion to deny Petitioner’s motion for a continuance
of the merits hearing. We review the BIA’s decision affirming the IJ’s denial of a
continuance for an abuse of discretion, Ahmed v. Holder, 569 F.3d 1009, 1012 (9th
Cir. 2009), and we may overturn the BIA’s decision only if it acted arbitrarily,
irrationally, or contrary to law, Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir.
2011). Petitioner argues that, in evaluating her motion for a continuance, the IJ
should have assessed “whether the underlying visa petition [was] prima facie
approvable” and that failing to do so was contrary to law.
But the caselaw on which Petitioner relies explicitly contemplates a “pending
family-based visa petition.” Matter of Sanchez Sosa, 25 I. & N. Dec. 807, 812–15
(BIA 2012) (emphasis added) (discussing Matter of Hashmi, 24 I. & N. Dec. 785(BIA 2009)). Here, Petitioner’s daughter had not filed any I-130 on Petitioner’s
behalf at the time of the hearing. Given that “[t]he [IJ] should not grant
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Before the IJ, Petitioner also applied for asylum and withholding of removal. The
BIA determined that Petitioner (1) “conceded that her 2017 conviction for alien
smuggling constituted an aggravated felony, which barred her from asylum,” and
(2) “is not eligible for withholding of removal because she has been convicted of a
particularly serious crime.” Additionally, the BIA concluded that Petitioner waived
review of the IJ’s alternative grounds for denying withholding of removal. Because
Petitioner did not challenge the BIA’s resolution of those claims in her petition
before this court, we do not address them.
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a continuance merely because the respondent expresses the intention to file for
collateral relief at some future date,” Matter of L-A-B-R-, 27 I. & N. Dec. 405, 415–
16 (A.G. 2018) (emphasis added), the BIA’s affirmance of the IJ’s denial of the
continuance based on an unfiled I-130 petition was within its discretion. See
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (per curiam).2
2. The BIA’s conclusion that Petitioner’s claim for deferral of removal under
CAT fails on the merits is supported by substantial evidence. 8 C.F.R. § 1208.17(a);
Medina-Rodriguez v. Barr, 979 F.3d 738, 744 (9th Cir. 2020).3 The IJ and the BIA
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Petitioner also argues the IJ denied the continuance with a “single minded” and
“myopic[] focus[] on expediently closing [Petitioner’s] case as quickly as possible,”
and that such focus on efficient resolution was legal error. This contention is belied
by the record, where the IJ continued Petitioner’s hearing three times before
Petitioner filed this motion to continue, which was the first time Petitioner’s counsel
mentioned an I-130 petition.
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Regardless of whether Petitioner’s claims for withholding and deferral of removal
under CAT were properly raised before the BIA, we have jurisdiction to consider
the claims because the BIA ignored any potential procedural defects and addressed
the claims directly. See Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en
banc). While the BIA denied Petitioner’s claim for deferral of removal under CAT
on the basis that she did not meet her burden of proof, it denied her claim for
withholding of removal under CAT on the basis that she had been convicted of a
particularly serious crime. Nonetheless, we need not address Petitioner’s challenge
to the agency’s particularly serious crime determination because the BIA’s
conclusion that Petitioner failed to establish that she will more likely than not be
tortured if she is removed to Mexico is supported by substantial evidence. See 8
C.F.R. § 1208.16(c)–(d). Under normal circumstances, we would review the
particularly serious crime determination because “we cannot affirm the BIA’s
decision on a basis on which it did not rely.” Navas v. INS, 217 F.3d 646, 662 n.24
(9th Cir. 2000). But here the withholding and deferral of removal standards under
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both concluded that Petitioner failed to meet her burden of proof that she was more
likely than not to be tortured upon her return to Mexico because her proffered
likelihood of torture was “based … on … a string of suppositions.” The record
evidence does not compel this court to reach a contrary conclusion. See id.Petitioner lived in the U.S. her entire life and can point only to one third-party
statement, never made directly to her, as evidence that she would be tortured if
returned to Mexico. The statement in question was from the family of a man named
Alejandro, who participated in Petitioner’s smuggling operation and was arrested.
The family allegedly told Petitioner’s acquaintance that they “knew that it was
[Petitioner who] … had … snitch[ed] on [Alejandro] so therefore [Petitioner] knew
what was coming.” But there is no evidence that either Alejandro or his family have
contacted Petitioner or her family in Texas since making this statement.
Suppositions built on hearsay do not compel this court to overturn the BIA’s decision
that Petitioner failed to present sufficient evidence to meet her burden under CAT.
See Blandino-Medina v. Holder, 712 F.3d 1338, 1348 (9th Cir. 2013).
Accordingly, the petition is DENIED.
CAT are identical; the sole distinction between the two claims is whether the
petitioner is eligible for withholding under CAT. See 8 C.F.R. §§ 1208.16(d)(2),
1208.17(a). We therefore see no issue with denying Petitioner’s CAT withholding
claim after concluding that the BIA’s denial of Petitioner’s CAT deferral claim was
supported by substantial evidence.
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