Hector Luna-Cabriales v. Jefferson Sessions , 694 F. App'x 553 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________________________
HECTOR LUNA-CABRIALES, No. 14-70388
AKA Hector C. Luna
Petitioner, Agency No. A090-811-142
v.
JEFFERSON B. SESSIONS III, MEMORANDUM*
Attorney General,
Respondent.
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2017**
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO, *** District Judge
Petitioner Hector Luna-Cabriales seeks review of his final order of removal
*
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 Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
issued by the Board of Immigration Appeals (“BIA”) on February 6, 2014, affirming
the immigration judge’s (“IJ”) decision ordering him removed to Mexico. We deny
the petition for review.
The BIA properly sustained the charge of removability even though service of
the conviction record was made several minutes after the IJ had already found him
removable. The regulations permit the IJ to extend the time limits for filing documents
and for service to be made on the record during the hearing. See 8 C.F.R. §§
1003.31(c), 1003.32(a). The record shows that actual service was accomplished on
the record in open court without objection from Petitioner’s counsel, thus curing
whatever defect may have existed due to the Government’s failure to provide
Petitioner with the documents at the time they were filed with the IJ. Because
Petitioner’s aggravated felony conviction for violating Penal Code Section 496d(a) is
a sufficient basis to affirm the BIA’s removal decision, we need not reach his
arguments concerning removability in connection with his alleged additional
convictions for violating California Health and Safety Code Section 11377(a).
The BIA was also supported by substantial evidence in its decision to deny
withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the
Convention Against Torture. To be entitled to withholding of removal based on a
claim of persecution, an alien must demonstrate (1) the existence of a cognizable
particular social group, (2) his membership in that particular social group, and (3) a
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risk of persecution on account of his membership in the specified particular social
group. See Reyes v. Lynch, 842 F.3d 1125, 1143 n.3 (9th Cir. 2016).
While Petitioner submitted evidence documenting alleged governmental
acquiescence in the maltreatment of persons institutionalized in Mexican mental health
facilities, substantial evidence supported the IJ’s determination that he failed to meet
his burden of showing a nexus between his stated particular social group — mentally
impaired aliens forced to return to Mexico — and persecution on account of being a
member of that group. Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir.
2013) (per curiam) (“[A]n inadequate healthcare system is not persecution and is not
harm inflicted because of membership in a particular social group.”) Substantial
evidence supported findings that Petitioner (1) has never been diagnosed with or
treated for a mental impairment, (2) can speak Spanish, (3) can earn a living as an auto
mechanic, and (4) can live independently outside of an institution.
PETITION FOR REVIEW DENIED.
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