Jesus Pablo De Pablo v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS PABLO DE PABLO, No. 18-72995
Petitioner, Agency No. A098-501-346
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 3, 2021**
Pasadena, California
Before: OWENS and LEE, Circuit Judges, and SIMON,*** District Judge.
Petitioner Jesus Pablo de Pablo, a native and citizen of Guatemala and an
indigenous Mayan, seeks review of a decision from the Board of Immigration
*
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 Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
Appeals (BIA) affirming the denial of Petitioner’s application for withholding of
removal and for protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
Here, the BIA affirmed the findings and conclusions of an Immigration
Judge (IJ) and made additional observations expressing agreement with the IJ.
Thus, we review the decisions of both the IJ and the BIA. See Kumar v. Holder,
728 F.3d 993, 998 (9th Cir. 2013). We review questions of law and legal
conclusions de novo and findings of fact for substantial evidence. See Tamang v.
Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). “Under the substantial evidence test,
we must uphold the IJ’s findings, ‘if supported by reasonable, substantial and
probative evidence on the record considered as a whole.’” Id. (quoting I.N.S. v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). To reverse these factual findings, we
“must find that the evidence not only supports that conclusion, but compels it . . . .”
Elias-Zacarias, 502 U.S. at 481 n.1 (emphasis in original); see also Villavicencio v.
Sessions, 904 F.3d 658, 663-64 (9th Cir. 2018) (citation omitted). We conclude
that substantial evidence supports the decisions of both the IJ and the BIA.
Petitioner unlawfully entered the United States in 2004 and was removed.
He did not seek relief from removal. In 2014, Petitioner unlawfully returned to the
United States and was immediately detained. This time, Petitioner expressed a fear
of returning to Guatemala, and an asylum officer who interviewed Petitioner
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determined that his fear was sufficiently reasonable to refer him into a
“withholding-only” proceeding before an IJ. See 8 C.F.R. §§ 208.31(a), (e), (g)(2),
241.8(e).
During that hearing, Petitioner, assisted by counsel, presented evidence that
Petitioner had supported the construction of a controversial mining venture in his
hometown and, in retaliation, was kidnapped by former guerrillas opposed to that
venture who extracted a ransom for Petitioner’s return. Petitioner also testified that
he fears the former guerillas would harm him again upon his return. Petitioner
explained that although his spouse and five children remain in Guatemala, that is
only because they do not have enough money to leave. Petitioner acknowledged
that the conflict over the specific mining venture that prompted his kidnapping has
ended.
The IJ denied Petitioner’s application for withholding of removal and for
protection under the CAT and ordered Petitioner’s removal. The IJ found that even
if Petitioner had previously expressed a “political opinion,” Petitioner had failed to
show that it was more likely than not that Petitioner would face persecution upon
return to Guatemala based on that opinion or expression. The IJ explained that the
mining venture had been abandoned, terminating the reason for Petitioner’s past
persecution. The IJ also found that Petitioner had failed to establish that “any
persecution would be done by a state actor or somebody the state is unwilling or
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unable to control.” Although the IJ identified inconsistencies in Petitioner’s
testimony, the IJ found that the inconsistencies did not warrant an adverse
credibility finding.
The IJ also found that Petitioner failed to show that it was more likely than
not that Petitioner would be persecuted because of his military service upon
removal and return to Guatemala. After entering Petitioner’s home to kidnap him
because of his signature on the pro-mining operation petition, the former guerillas
learned of Petitioner’s military service and increased the ransom demand. The IJ,
nevertheless, found that the “real motive” of the former guerillas for targeting
Petitioner was his political opinion supporting the mining operation.
Regarding Petitioner’s torture claim, the IJ found that Petitioner had failed to
establish that a public official would torture Petitioner or acquiesce to his torture.
The IJ noted that Petitioner’s spouse and children remained in their hometown and
had not been targeted for the unpaid remainder of Petitioner’s ransom and that the
disturbance related to the mining venture had ended. The IJ also concluded that
Petitioner had not shown that he was unable to relocate within Guatemala to avoid
persecution or torture.
Petitioner appealed to the BIA, arguing that he had sufficiently shown past
persecution and therefore was eligible for withholding of removal. Petitioner,
however, did not appeal to the BIA his denial of protection under the CAT.
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Although Petitioner’s notice of appeal identified the IJ’s decisions both to deny
withholding of removal and to deny protection under the CAT as the issues being
appealed in his brief to the BIA, Petitioner did not discuss the CAT decision, only
the denial of withholding of removal.
The BIA dismissed Petitioner’s appeal, concluding that the IJ had overcome
the presumption of future persecution by finding by a preponderance of the
evidence that there had been a “fundamental change in circumstances” such that
Petitioner’s “life or freedom would not be threatened on account of any statutorily
protected ground.” See 8 C.F.R. § 1208.16(b)(1)(i)(A). The BIA agreed with the
IJ’s reasoning, citing the cessation of the mining venture, the passage of time, and
the Guatemalan government’s apparent willingness to protect persons from future
persecution as evidenced by past arrests made in connection with civil disturbances
over mining projects. The BIA held that these factual findings were not clearly
erroneous and that Petitioner had not established a clear probability of persecution
in Guatemala. The BIA also concluded that Petitioner failed specifically to contest
and provide any argument against the IJ’s denial of protection under the CAT,
thereby waiving Petitioner’s right to appeal on that issue.
The IJ and BIA’s findings of fact are supported by substantial evidence. The
IJ and BIA’s findings that the country conditions report indicates the government
of Guatemala has taken action to prevent and punish unlawful or violent activity in
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opposition to resource development are supported by evidence. This finding is
bolstered by the cessation of the mining venture and the related conflict in
Petitioner’s region, evidence that Petitioner’s family has not been targeted despite
Petitioner’s failure to pay the remaining unpaid portion of the ransom, and the
passage of a significant amount of time. Petitioner’s evidence does not show that a
reasonable adjudicator must conclude that Petitioner is likely to be subject to
persecution, such that the IJ and BIA’s factual determinations should be reversed.
Nor does Petitioner’s evidence show that the IJ and BIA’s findings that the passage
of time, end of the mining venture, and lack of persecution of Petitioner’s family
are erroneous. Thus, the decisions of the IJ and BIA are supported by substantial
evidence.
Finally, an issue must be raised in an appeal to the BIA to preserve that issue
for further appeal. See Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). Failure
to do so constitutes a failure to exhaust administrative remedies and deprives the
court of appeals of jurisdiction to consider that issue. Id. In general, a petitioner
waives any arguments before the appeals court when those arguments are not
stated specifically and distinctly in a petitioner’s opening brief. See Koerner v.
Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003). Here, Petitioner has waived any
appeal of the IJ’s decision regarding the CAT by not presenting his arguments
before the BIA. In addition, Petitioner did not argue that point in his opening
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appellate brief and did not file a reply brief. Accordingly, that issue is waived.
PETITION FOR REVIEW DENIED.
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