Eloy Mendoza-Gonzalez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELOY MENDOZA-GONZALEZ, No. 19-72677
Petitioner, Agency No. A098-297-280
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2021**
San Francisco, California
Before: CHRISTEN and BADE, Circuit Judges, and FEINERMAN,*** District
Judge.
Eloy Mendoza-Gonzalez, a citizen of Mexico who identifies as indigenous,
petitions for review of a Board of Immigration Appeals (BIA) decision that adopted
*
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 Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
and affirmed an Immigration Judge (IJ) order denying his application for
withholding of removal under the Immigration and Nationality Act (INA) and that
dismissed his appeal. “We review constitutional claims and questions of law de
novo and review factual findings under the deferential substantial evidence standard,
treating them as conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th
Cir. 2011) (internal quotation marks omitted). Because the BIA adopted the IJ’s
reasoning and conclusions, we review “both decisions and treat the IJ’s reasons as
those of the BIA.” Gutierrez v. Holder, 662 F.3d 1083, 1086 (9th Cir. 2011). We
have jurisdiction under 8 U.S.C. § 1252 and deny the petition.
1. Substantial evidence supports the IJ’s and BIA’s conclusions that the
government met its burden to show, by a preponderance of the evidence, a
“fundamental change in circumstances” rebutting the presumption that Mendoza-
Gonzalez will face future persecution in Mexico on account of his indigenous status.
See 8 C.F.R. § 1208.16(b)(1)(i)(A).
First, at the time the IJ ruled on Mendoza-Gonzalez’s withholding
application, fifteen years had elapsed since police officers had beaten him in Oaxaca,
Mexico, where he is from, and there is no evidence in the record to suggest that those
officers have any continuing interest in him. See Belayneh v. INS, 213 F.3d 488,
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491 (9th Cir. 2000) (upholding the denial of the petitioner’s withholding application,
and relying on the passage of twenty-five years since she had been persecuted);
Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (upholding the denial of the
petitioner’s withholding application, and stressing that there was no evidence that
his persecutors had any continuing interest in him).
Second, Mendoza-Gonzalez returned to Oaxaca within a year of the beating
and remained there with his indigenous wife for several months, suffering no harm.
See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir. 2005) (noting that
return trips to the petitioner’s country of origin can support a finding that the
presumption of a well-founded fear of persecution has been rebutted).
Third, the country conditions evidence in the record—including a 2018 report
on indigenous human rights in Mexico—does not compel the conclusion that
Mendoza-Gonzalez will more likely than not suffer future persecution on account of
his indigenous status. As the IJ observed, the report focuses on violence against
indigenous journalists and activists, and Mendoza-Gonzalez is neither. Moreover,
the IJ properly gave weight to the report’s finding that the Mexican government has
taken steps to protect indigenous persons, while acknowledging the report’s
assertion that such persons continue to face discrimination and violence. See
Gonzalez–Hernandez v. Ashcroft, 336 F.3d 995, 1000 (9th Cir. 2003) (“[W]here the
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BIA rationally construes an ambiguous or somewhat contradictory country report
and provides an individualized analysis of how changed conditions will affect the
specific petitioner’s situation, substantial evidence will support the agency
determination.”) (internal quotation marks and citation omitted).
2. The BIA correctly determined that the IJ’s exclusion of testimony from
Mendoza-Gonzalez’s psychological expert did not deny him due process. “To
prevail on a due process challenge,” an applicant for withholding of removal “must
show error and substantial prejudice.” Grigoryan v. Barr, 959 F.3d 1233, 1240
(9th Cir. 2020) (quoting Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)).
Mendoza-Gonzalez has demonstrated neither. Excluding the expert’s testimony
was not an error because the IJ fully credited the expert’s written report. And
Mendoza-Gonzalez did not suffer any prejudice because there is no evidence in the
record to suggest that the testimony—which pertained only to the genuineness of
Mendoza-Gonzalez’s fear of returning to Mexico, which the IJ had credited—
could have affected the outcome of his case.
PETITION DENIED.
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