Ricardo Garcia-Mendoza v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO GARCIA-MENDOZA, No. 19-71951
Petitioner, Agency No. A077-118-907
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.
Petitioner Ricardo Garcia-Mendoza (Garcia) seeks review of the Board of
Immigration Appeals’ (BIA) denial of his motion to reopen a final order of removal.
We review the BIA’s denial of Garcia’s motion to reopen for abuse of discretion and
will reverse only when it acts “arbitrarily, irrationally or contrary to law.”
*
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).
Yeghiazaryan v. Gonzales, 439 F.3d 994, 998 (9th Cir. 2006) (quoting Lara-Torres
v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004), amended by 404 F.3d 1105 (9th Cir.
2005)). We have jurisdiction to review the BIA’s denial of a motion to reopen
pursuant to 8 U.S.C. § 1252(a). We deny the petition.
Under 8 C.F.R. § 1003.2(c)(2), an alien may file a motion to reopen his case
within 90 days of the final removal order. Garcia does not dispute that he filed his
motion to reopen more than 90 days after the final removal order. Rather, he argues
that he qualifies for an exception to this deadline because, due to changed
circumstances in Mexico, he now can show a reasonable likelihood of success on
his claims for relief. See 8 C.F.R. § 1003.2(c)(3)(ii); Rodriguez v. Garland, 990 F.3d
1205, 1210 (stating that a petitioner may “present evidence of changed personal
circumstances to the extent that is helpful ‘to establish the materiality’ of . . . changed
country conditions”) (quoting Chandra v. Holder, 751 F.3d 1034, 1037 (9th Cir.
2014)).
1. Garcia argues that the BIA erred in holding that he could not make out
a prima facie case of eligibility for asylum or withholding of removal based on
changed circumstances in his native Mexico. Specifically, he points to evidence
showing human rights abuses including “involvement by police, military, and other
state officials, sometimes in coordination with criminal organizations, in unlawful
killings, disappearances, and torture,” and an increase in the number of homicides.
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He also claims that he fears returning to Mexico on account of threats to his family
due to their ownership of land and a business and on account of his familial ties with
his brother, who has engaged in criminal activities in Mexico and has previously
assumed Garcia’s identity.
The BIA did not abuse its discretion in concluding that the harms to his family
Garcia described do not rise to the level of persecution. See Korablina v. INS, 158
F.3d 1038, 1044 (9th Cir. 1998) (describing persecution as “an extreme concept that
does not include every sort of treatment our society regards as offensive”) (quoting
Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)).
Garcia claims that his aunt, who runs a family-owned store, was repeatedly
threatened with death and extorted, and he says that he fears he will be targeted due
to his association with this business. However, we do not typically regard such
threats, on their own, as persecution. See Nahrvani v. Gonzales, 399 F.3d 1148,
1153 (9th Cir. 2005) (“[W]hile we have acknowledged that threats of death are
enough to constitute persecution, we typically rely on all of the surrounding events,
including the death threat[s], in deciding whether persecution exists.”) Garcia
neither states that his aunt was physically harmed nor that his sister, who has taken
over the store, has received similar threats. To the extent Garcia’s claimed fear is
based on generalized violence in Mexico, such fear cannot serve as a basis for
asylum. See Hussain v. Rosen, 985 F.3d 634, 649 (9th Cir. 2021) (“Acknowledging
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that a particular country is currently plagued by generalized crime and violence
cannot be a basis for granting asylum to any citizen of that country in the United
States.”).
The BIA also reasonably concluded that Garcia failed to put forth evidence
demonstrating a nexus between a protected ground and any harm that might be
inflicted on him, as is required to make a prima facie case for asylum or withholding
of removal. Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017). Garcia
claims membership in a family-based particular social group, but he fails to show
that any family member other than his aunt was threatened, that the criminals who
extorted her did so for reasons other than financial gain, or that he would be targeted
on account of his family ties. Cf. Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.
2010) (“An alien’s desire to be free from harassment by criminals motivated by theft
or random violence by gang members bears no nexus to a protected ground.”).
He also fails to argue that he could not reasonably relocate within Mexico to
avoid the harm he fears. See Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.
2000) (“When determining whether a fear [of persecution] is well-founded, a court
may consider evidence that a person could safely move elsewhere in their home
country.” (cleaned up)). Finally, the BIA reasonably concluded that Garcia’s
claimed fear of being harmed because his brother may commit crimes using Garcia’s
identity did not amount to prima facie evidence of eligibility for asylum or
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withholding of removal, because it was speculative. See Nagoulko v. INS, 333 F.3d
1012, 1018 (9th Cir. 2003) (holding that the petitioner did not have an objectively
reasonable fear of persecution when her fear was based on a speculative chain of
events). Garcia submitted no evidence to support the idea that he may be targeted
because of crimes his brother has committed or may commit in the future.
2. The BIA did not abuse its discretion in concluding that Garcia failed to
demonstrate prima facie eligibility for CAT protection. Garcia’s submission of
general evidence that torture exists in Mexico was not sufficient to establish a prima
facie case that it is more likely than not he would be tortured in Mexico. See
Delgado–Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam)
(“[G]eneralized evidence of violence and crime in Mexico is not particular to
Petitioners and is insufficient to meet [the CAT] standard.”). And because Garcia
could not demonstrate that the lower threshold of persecution is met by the harm he
fears related to the purported harassment and extortion of his family, he also cannot
demonstrate that he faces a likelihood of torture. See Guo v. Sessions, 897 F.3d
1208, 1217 (9th Cir. 2018) (torture is more severe than persecution).
3. Because Garcia cannot demonstrate that he qualifies for an exception
to the time bar in 8 C.F.R. § 1003.2(c)(2), the BIA’s determination that Garcia’s
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motion to reopen was untimely was not in error.1
PETITION DENIED.
1
We do not have jurisdiction to consider Garcia’s claim that the BIA should have
reopened his case sua sponte. Lara-Garcia v. Garland, 49 F.4th 1271, 1277 (9th
Cir. 2022) (“We generally lack jurisdiction to review the BIA’s denial of sua sponte
reopening . . . [and] retain jurisdiction [only] to review any underlying legal or
constitutional errors.” (citation omitted)).
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