Ivan Mendez Rodas v. Loretta E. Lynch , 646 F. App'x 533 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVAN MENDEZ RODAS, Nos. 12-73227, 13-70904
Petitioner, Agency No. A089-859-407
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2016**
San Francisco, California
Before: BYBEE and N.R. SMITH, Circuit Judges and KORMAN,***District Judge.
Ivan Mendez Rodas petitions for review of the decision of the Board of
Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Edward R. Korman, District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
applications for eligibility for asylum, withholding of removal, and protection under
the Convention against Torture (“CAT”). Rodas also argues that the BIA erred in
declining to rule on his bond and custody issues during the merits appeals of the IJ’s
order of removal. Separately, Rodas petitions for review of the BIA’s denial of his
motion for reconsideration. We deny in part and dismiss in part these petitions for
review.
1. Rodas did not file his asylum application until thirteen years after arriving
in the United States. An asylum application must be filed “within 1 year after the date
of the alien’s arrival in the United States” subject to certain limited exceptions not
relevant here. 8 U.S.C. § 1158(a)(2)(B). This one-year period begins on “the date of
the alien’s last arrival in the United States or April 1, 1997, whichever is later.” 8
C.F.R. § 1208.4(a)(2)(ii). Rodas claims that, because he managed to somehow avoid
inspection when he crossed the border, he should not be deemed to have ever arrived
in the United States. This claim is without merit. An alien who enters the United
States “whether or not at a designated port of arrival” has arrived for asylum purposes.
8 U.S.C. § 1158(a)(1); see also Matter of F-P-R, 24 I&N Dec. 681, 683 (BIA 2008)
(defining “last arrival” as an “alien’s most recent coming or crossing into the United
States after having traveled from somewhere outside of the country”). Thus, Rodas’s
asylum application was untimely.
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2. Even if Rodas had timely filed his asylum application, he would still be
ineligible for asylum. Rodas claims that Guatemala persecutes rural farmers by failing
to provide them with sufficient economic assistance. Any economic hardship that he
may suffer due to Guatemala’s economic policies does not constitute persecution. See
Gormley v. Ashcroft, 364 F.3d 1172, 1177-79 (9th Cir. 2004). Indeed, based on
Rodas’s testimony, the IJ could have reasonably concluded that these economic
policies impacted all Guatemalan citizens rather than just rural farmers. Moreover,
because Rodas failed to demonstrate a well-founded fear of persecution, he cannot
satisfy the more stringent requirements to be eligible for withholding of removal. See
Al-Haribi v. I.N.S., 242 F.3d 882, 888-89 (9th Cir. 2001).
3. Rodas did not establish eligibility for protection under the CAT because any
economic hardship that he may face if returned to Guatemala would not constitute
torture, which is limited to “extreme form[s] of cruel and inhuman treatment.” 8
C.F.R. § 1208.18(a)(2).
4. Rodas also asks that the BIA be ordered to set bond rather than requiring him
to report to Immigration and Customs Enforcement as well as the Intensive
Supervision Appearance Program. Our jurisdiction to entertain direct appeals from
the BIA is confined to a “final order of removal.” 8 U.S.C. § 1252(a). We therefore
lack jurisdiction to resolve this issue because bond and custody matters are treated as
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“separate and apart from . . . any deportation or removal hearing or proceeding.” 8
C.F.R. § 1003.19(d); see 8 U.S.C. § 1252(b)(9).
5. We reject Rodas’s appeal from the BIA’s denial of his motion for
reconsideration because it simply repeats the issues raised in his original appeal.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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