Christian Lopez-Vargas v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN ALEXIS LOPEZ-VARGAS, No. 18-71736
AKA Christian Alexis Lopez, 18-72820
Petitioner, Agency No. A205-319-852
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Christian Alexis Lopez-Vargas, a native and citizen of Mexico, petitions for
review of two Board of Immigration Appeals’ (BIA) decisions. The first denied
Lopez-Vargas’s application for cancellation of removal, and the second denied his
motion to reconsider the first order and reopen his removal proceedings to apply
*
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).
for asylum, withholding of removal, protections under the Convention Against
Torture (CAT), and adjustment of status. To the extent that we have jurisdiction, it
is under 8 U.S.C. § 1252. We deny the petition.
1. We lack jurisdiction over the initial denial of cancellation of removal, and
we hold that the BIA did not abuse its discretion in denying Lopez-Vargas’s
motion to reconsider the issue. Generally, “[t]his court lacks jurisdiction to review
the merits of a discretionary decision to deny cancellation of removal.” Szonyi v.
Barr, 942 F.3d 874, 896 (9th Cir. 2019). “Although we retain jurisdiction to
review due process challenges, a petitioner may not create the jurisdiction that
Congress chose to remove simply by cloaking an abuse of discretion argument in
constitutional garb.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001).
“Thus, to invoke our jurisdiction, a petitioner must allege at least a colorable
constitutional violation.” Id. Lopez-Vargas argues that the BIA violated his due
process rights by determining that the record of proceedings—which omitted part
of his wife’s testimony—was sufficient to adequately review the Immigration
Judge’s (IJ) decision to deny his application for cancellation of removal. However,
“[t]o establish a due process violation, a petitioner must show that defects in
translation prejudiced the outcome of the hearing.” Aden v. Holder, 589 F.3d
1040, 1047 (9th Cir. 2009). Lopez-Vargas has not made that showing, and we are
thus divested of jurisdiction over the BIA’s initial order denying cancellation of
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removal. See Torres-Aguilar, 246 F.3d at 1271.
Next, we review Lopez-Vargas’s second challenge of the BIA’s decision
declining to reconsider cancellation of removal for an abuse of discretion. See
Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). This claim fails, however,
as Lopez-Vargas did not identify any factual errors in the agency’s discussion of
his cancellation claim, and he has not shown that any omitted testimony would
have changed the agency’s determination. Accordingly, the BIA’s decision was
not an abuse of discretion. See 8 C.F.R. § 1003.2(b)(1); Singh v. Ashcroft, 367
F.3d 1139, 1143–44 (9th Cir. 2004).
2. The BIA did not abuse its discretion in denying Lopez-Vargas’s motion to
reopen to apply for asylum and withholding of removal. Lopez-Vargas asserts that
his father-in-law was killed by the cartel. He also asserts that his mother’s family
will harm him if he returns to Mexico because they resent his mother’s opposition
to their cartel involvement. “[I]n some circumstances, a family constitutes a social
group for purposes of the asylum and withholding-of-removal statutes.” Molina-
Estrada v. INS, 293 F.3d 1089, 1095 (9th Cir. 2002). But Lopez-Vargas does not
identify any particular social group on account of which he fears persecution,
vaguely noting only that he fears persecution based on his relationship to his
father-in-law and mother. And he has not shown any harms to his family that
“create a pattern of persecution closely tied to” him or otherwise establish
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persecution based on his family status. Arriaga-Barrientos v. INS, 937 F.2d 411,
414 (9th Cir. 1991). Lopez-Vargas similarly fails to articulate how his claim that
he was kidnapped and beaten by gang members because he was from the United
States amounts to persecution on account of his membership in a particular social
group. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010)
(“‘[R]eturning Mexicans from the United States,’ . . . is too broad to qualify as a
cognizable social group.”). Because Lopez-Vargas has not established that he
belongs to a cognizable particular social group, he has not set forth a prima facie
case of eligibility for asylum or withholding of removal, and the BIA thus did not
abuse its discretion in denying the motion to reopen. See Ramirez-Munoz v. Lynch,
816 F.3d 1226, 1228–29 (9th Cir. 2016)
3. The BIA did not abuse its discretion in denying Lopez-Vargas’s motion
to reopen to apply for CAT protections. Lopez-Vargas stated that the BIA abused
its discretion in determining that he did not establish prima facia eligibility for
protections under CAT, but he did not provide any argument to support that
contention—mentioning nothing about the likelihood of torture with the consent or
acquiescence of the Mexican government. He has thus failed to demonstrate that
the BIA’s decision was an abuse of discretion.
4. The BIA did not abuse its discretion in declining to reopen the
proceedings to enable Lopez-Vargas to apply for adjustment of status. Before the
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BIA, Lopez-Vargas asserted a new argument that he is not inadmissible as an alien
who is present without being admitted or paroled because he “was admitted from
Mexico when an officer allowed the car in which he was a passenger to enter the
United States after the driver spoke with the officer.” See Lezama-Garcia v.
Holder, 666 F.3d 518, 528 (9th Cir. 2011) (quoting In re Quilantan, 25 I. & N.
Dec. 285, 291 (BIA 2010)). However, Lopez-Vargas previously conceded
removability. Moreover, “[a] motion to reopen proceedings shall not be granted
unless . . . 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). Lopez-Vargas did not make that showing, as the nature of his entry
was certainly discoverable at the earlier proceedings.1
DENIED.
1
To the extent that he blames his former attorney for these errors, he has not
complied with the In re Lozada requirements for an ineffective assistance of
counsel claim, 19 I. & N. Dec. 637 (BIA 1988).
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