Trinidad Martinez-Espindola v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
FEB 24 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRINIDAD MARTINEZ-ESPINDOLA, No. 20-72133
Petitioner, Agency No. A208-967-399
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.
Petitioner Trinidad Martinez-Espindola (Petitioner) is a native and citizen of
Mexico. He seeks review of an order from the Board of Immigration Appeals
(BIA) dismissing his appeal from the denial of his applications for asylum,
withholding of removal, cancellation of removal, and relief under the Convention
Against Torture (CAT).1 He also petitions for review of the BIA’s denial of his
motion to remand. We DISMISS the petition in part and DENY the petition in
part.
1. We lack jurisdiction to review the discretionary denial of Petitioner’s
application for cancellation of removal, because Petitioner has not raised a
cognizable legal question concerning the determination that Petitioner failed to
demonstrate the existence of “exceptional and extremely unusual hardship” to a
qualifying relative. Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir. 2003)
(citations omitted). We have jurisdiction over the remaining issues under 8 U.S.C.
§ 1252.
2. The BIA did not abuse its discretion in denying Petitioner’s motion to
remand. Despite the additional evidence proffered by Petitioner in support of his
motion to remand, including the arrival of his stepdaughter, Petitioner “failed to
1
The IJ denied Petitioner’s application for CAT relief. Petitioner waived his
challenge to this denial by failing to address it in his opening brief. See
Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020).
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establish prima facie eligibility for cancellation of removal.” Partap v. Holder, 603
F.3d 1173, 1175 (9th Cir. 2010).
3. Because the BIA adopted the decision by the Immigration Judge (IJ)
denying Petitioner’s applications for asylum and withholding of removal, “we
review the IJ’s decision as if it were that of the BIA.” Abebe v. Gonzales, 432 F.3d
1037, 1039 (9th Cir. 2005) (citations omitted). “We review the IJ’s findings of fact
for substantial evidence and will uphold these findings if they are supported by
reasonable, substantial, and probative evidence on the record considered as a
whole. . . .” Id. at 1039–40 (citation omitted).
Substantial evidence supports the IJ’s determination that Petitioner failed to
demonstrate that he filed an application for asylum within one year of his arrival
into the United States, or that he qualifies for an exception to the one-year filing
requirement. See 8 U.S.C. § 1158(a)(2)(B), (D); see also Ramadan v. Gonzales,
479 F.3d 646, 649-50, 657 (9th Cir. 2007) (per curiam). Petitioner failed to meet
his burden of establishing that his failure to satisfy the one-year filing requirement
was due to changed or extraordinary circumstances. See Ramadan, 479 F.3d at
657 (changed circumstances); see also Dhital v. Mukasey, 532 F.3d 1044, 1050
(9th Cir. 2008) (extraordinary circumstances).
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4. Substantial evidence supports the IJ’s denial of Petitioner’s application
for withholding of removal due to failure to establish nexus to a protected ground.
Petitioner’s declaration stated that he was previously threatened by two
uncles, and involved in a physical altercation with one of the uncles. As a result,
he is afraid to return to Mexico. However, Petitioner’s declaration and testimony
demonstrated that the harm he experienced and the harm he fears are motivated by
an inter-familial property dispute rather than on account of a protected ground. See
Molina-Morales v. I.N.S., 237 F.3d 1048, 1052 (9th Cir. 2001) (concluding that
persecution motivated by a personal vendetta is not “on account of” a protected
ground).
Petitioner also testified that he is afraid to return to Mexico because his
return from the United States may lead to a perception that he is wealthy. He
contends that this perception may motivate local gangs to kidnap or extort him.
This claim fails to establish a clear probability of future persecution on account of
a protected ground because his “proposed group of imputed wealthy Americans” is
not a cognizable “particular social group.” Ramirez-Munoz v. Lynch, 816 F.3d
1226, 1229 (9th Cir. 2016) (citation and internal quotation marks omitted).
PETITION DISMISSED in part and DENIED in part.
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