Cesar Duran-Rodriguez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR DURAN-RODRIGUEZ, No. 18-72614
Petitioner, Agency No. A098-427-334
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Cesar Duran-Rodriguez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th
Cir. 2014). We review for abuse of discretion the denial of a motion to reopen.
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de novo
claims of due process violations. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir.
2014). We deny the petition for review.
The BIA did not err in declining to consider Duran-Rodriguez’s arguments
concerning the untimeliness of his asylum application that were raised for the first
time to the BIA. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019)
(BIA did not err in declining to consider argument raised for the first time on
appeal); Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007) (issues not
raised to the IJ are not properly before the BIA on appeal); see also Santiago-
Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision
of the BIA, we consider only the grounds relied upon by that agency.” (citation and
internal quotation marks omitted)). Thus, his asylum claim fails.
The BIA did not abuse its discretion in denying Duran-Rodriguez’s motion
to reopen and remand, where he failed to establish that his newly submitted
evidence was material or previously unavailable. See Najmabadi, 597 F.3d at 986
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(BIA may deny a motion to reopen for failure to introduce previously unavailable,
material evidence).
Substantial evidence supports the agency’s determination that Duran-
Rodriguez failed to establish nexus to a protected ground. See Garcia-Milian, 755
F.3d at 1033; Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An
[applicant’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.”). Thus,
his withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Duran-Rodriguez failed to show it is more likely than not he will be tortured by or
with the consent or acquiescence of the government if returned to Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
Duran-Rodriguez’s contentions that the agency violated his due process
rights are unpersuasive. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(petitioner must show error to prevail on a due process claim).
Duran-Rodriguez’s contention that the immigration court lacked jurisdiction
over his case is unpersuasive. See Karingithi v. Whitaker, 913 F.3d 1158, 1160-62
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(9th Cir. 2019) (initial notice to appear need not include time and date information
to vest jurisdiction in immigration court).
We deny petitioner’s request to remand, raised in the opening brief, in order
to apply for cancellation of removal in the first instance in light of Pereira v.
Sessions, 138 U.S. 2105 (2018), without prejudice to the filing of a motion to
reopen with the agency.
PETITION FOR REVIEW DENIED.
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