Felipe Heredia Hernandez v. Merrick B. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIPE HEREDIA HERNANDEZ, No. 20-72666
Petitioner, Agency No. A213-080-861
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2023**
Pasadena, California
Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges.
Petitioner Felipe Heredia Hernandez seeks review of the Board of
Immigration Appeals’ (BIA) denial of his claims for withholding of removal and
relief under the Convention Against Torture (CAT). He also argues that the
Immigration Judge (IJ) lacked jurisdiction over his removal proceedings because of
*
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).
a deficient notice to appear. We have jurisdiction under 8 U.S.C. § 1252(a), and we
deny the petition.
We review only the BIA’s decision, except to the extent the BIA adopted the
IJ’s decision. Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021). In doing so,
we review the agency’s legal conclusions de novo and factual findings for substantial
evidence. Id.
1. IJ Jurisdiction. Our precedent forecloses Heredia Hernandez’s
argument that the IJ lacked jurisdiction because his notice to appear was deficient.
See United States v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en
banc) (“[T]he failure of [a notice to appear] to include time and date information
does not deprive the immigration court of subject matter jurisdiction.”); Aguilar
Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (same regarding failure to specify
location of removal hearing).
2. Withholding of Removal. A petitioner may qualify for withholding if
the person’s “life or freedom would be threatened in [the country of removal]
because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(3)(A) (emphasis added); see also
Barajas Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). Substantial evidence
supports the BIA’s conclusion that there is an insufficient nexus between Heredia
Hernandez’s claimed social group—his family—and his feared persecution. Heredia
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Hernandez fears that his brother’s kidnappers will retaliate against him for
cooperating with law enforcement if he is removed to Mexico. The BIA concluded
that this feared persecution stems not from Heredia Hernandez’s familial
relationship with his brother but from the kidnappers’ desire for personal revenge,
and accordingly lacks a nexus to any protected ground. See Ayala v. Holder, 640
F.3d 1095, 1097 (9th Cir. 2011) (per curiam); see also Zetino v. Holder, 622 F.3d
1007, 1016 (9th Cir. 2010). The record does not compel us to reach a different
conclusion.
3. CAT. “CAT protection cannot be granted unless an applicant shows a
likelihood of torture that ‘is inflicted by or at the instigation of or with the consent
or acquiescence of a public official acting in an official capacity or other person
acting in an official capacity.’” B.R. v. Garland, 26 F.4th 827, 844 (9th Cir. 2022)
(citation omitted). The IJ found that Heredia Hernandez failed to demonstrate the
required government acquiescence. Heredia Hernandez did not challenge this
finding to the BIA, and the BIA concluded that he waived any challenge to the
dispositive issue of government acquiescence. Because Heredia Hernandez failed to
exhaust this challenge, we lack jurisdiction to consider it. See Bare v. Barr, 975
F.3d 952, 960 (9th Cir. 2020); see also Iraheta-Martinez v. Garland, 12 F.4th 942,
948 (9th Cir. 2021). Heredia Hernandez also “waived any argument as to [his] CAT
claim by failing to ‘specifically and distinctly’ discuss the matter in [his] opening
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brief,” Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020), and even if
he had not waived it, it would fail as he “has not shown a likelihood of torture by or
with the acquiescence of public officials.” Id.1
PETITION DENIED IN PART AND DISMISSED IN PART.
1
The Government’s motion to strike Heredia Hernandez’s reply brief [D.E.
31] is GRANTED. The brief is overlength, see 9th Cir. R. 32-1(b), and it also raises
numerous arguments that were not presented in Heredia Hernandez’s opening brief,
see Velasquez-Gaspar, 976 F.3d at 1065. Counsel is cautioned to ensure future
compliance with our rules.
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