Adan Guzman-Hernandez v. Jefferson Sessions ( 2018 )

FILED
NOT FOR PUBLICATION
JUN 18 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAN GUZMAN-HERNANDEZ, AKA No. 15-72601
Eliseo Cubvas-Arranco, AKA Hector
Cubvas-Arranco, AKA Eliseo Cueva, Agency No. A077-540-776
AKA Hector Cuevas-Galan,
Petitioner, MEMORANDUM*
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 18, 2018
Seattle, Washington
Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Raymond J. Dearie, United States District Judge for
the Eastern District of New York, sitting by designation.
Adan Guzman-Hernandez, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (“BIA”) order dismissing an appeal
from the Immigration Judge’s (“IJ”) denial of Guzman’s applications for
withholding of removal and protection under the Convention Against Torture.
1. Guzman has not established that any persecution he experienced took
place on account of a statutorily protected ground. See 8 U.S.C. § 1231(b)(3); 8
C.F.R. § 1208.16(b); Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000). As to
the asserted particular social group comprised of all landowners in Mexico, even if
all Mexican landowners constitute a particular social group, Guzman has not
established the required nexus between his alleged persecution and membership in
that group. The dispute that led to his father’s murder was a dispute between two
landowners over a single parcel of land. Guzman acknowledged that his father was
killed by his father’s cousin because of “greed,” not because of his status as a
landowner.
As to the asserted particular social group comprised of people resisting
Mexican criminal cartels, Guzman failed to raise that issue to the BIA. We lack
jurisdiction over legal claims not presented in proceedings before the BIA. See
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
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2. Substantial evidence also supports the BIA’s determination that Guzman
failed to establish a clear probability of torture. The past injury Guzman himself
experienced does not amount to torture, nor does the murder of Guzman’s father
show a “pattern of persecution.” See Arriaga-Barrientos v. INS, 937 F.2d 411, 414
(9th Cir. 1991). Also, there is substantial evidence in the record that Guzman
could relocate safely to Mexico. Guzman returned several times to Mexico after
first entering the United States, for “a few weeks” at a time and on at least one
occasion for “a few months,” without experiencing any torture or threats of torture.
Guzman therefore has not shown that it is “more likely than not” that he would be
tortured if removed to Mexico. 8 C.F.R. § 1208.16(c)(2); see Lianhua Jiang v.
Holder, 754 F.3d 733, 740 (9th Cir. 2014).
3. Finally, the BIA did not abuse its discretion in declining to remand to the
IJ to consider Guzman’s new evidence of post-traumatic stress disorder (“PTSD”).
A motion to reopen “shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have
been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see
also Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (holding that, if “the
allegedly new information” was “capable of being discovered” at the time of the IJ
hearing, “it cannot provided a basis for reopening”). Guzman did not explain why
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the mental health evaluation and PTSD diagnosis “could not have been discovered
or presented” at the IJ hearing. More importantly, Guzman did not establish that
the mental health evaluation and PTSD diagnosis were material: Guzman,
represented by counsel, participated in proceedings before the IJ without any
apparent difficulty, with no indicia of incompetency.
PETITION FOR REVIEW DENIED.
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