Martinez Gutierrez v. 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NOT FOR PUBLICATION FILED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
Julio Cesar Martinez Gutierrez, No. 21-1014
Petitioner, Agency No. A077-233-384
v.
MEMORANDUM*
Merrick B. Garland, U.S. 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 Julio Cesar Martinez Gutierrez seeks review of the Board of
Immigration Appeals’ (BIA) denial of his applications for asylum, withholding
of removal, cancellation of removal, and protection under the Convention Against
Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the
petition.
*
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).
1. Asylum and Withholding of Removal. To establish eligibility for
both asylum and withholding of removal, a petitioner must establish a “nexus”
between his feared persecution and a protected ground. See Barajas-Romero v.
Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017). In other words, failure to establish
a nexus is fatal to a claim for both asylum and withholding. See id. at 360; see
also Zetino v. Holder, 622 F.3d 1007, 1015–16 (9th Cir. 2010).
Substantial evidence supports the BIA’s conclusion that Martinez
Gutierrez failed to demonstrate any nexus between his feared persecution and a
protected ground. Martinez Gutierrez’s stated fear centered on the murder of his
father that occurred nearly half a century ago, before Martinez Gutierrez was
born. Martinez Gutierrez fails to connect his father’s killing to a protected ground
or show why his familial connection to his father would lead to his own
persecution if returned to Mexico. Rather, the record supports that Martinez
Gutierrez fears general crime or violence, which necessarily fails to satisfy the
nexus requirement. See Zetino, 622 F.3d at 1016; Hernandez-Galand v. Garland,
996 F.3d 1030, 1037 (9th Cir. 2021).1
2. Cancellation of Removal. “The Attorney General may cancel
removal of” an alien who satisfies the statutory eligibility requirements. 8 U.S.C.
§ 1229b(b)(1). Our review of the agency’s denial of cancellation is limited to
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In his brief, Martinez Gutierrez proffers an additional social group:
“deportee[s] who ha[ve] resided in the United States.” This proposed social group
was not exhausted before the agency and, accordingly, we cannot consider it. See
Mendoza Rizo v. Lynch, 810 F.3d 688, 693 (9th Cir. 2016).
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legal or constitutional issues. See Mendez-Castro v. Mukasey, 552 F.3d 975, 978
(9th Cir. 2009). We do not have jurisdiction to review the agency’s ultimate
exercise of discretion. Vilchez v. Holder, 682 F.3d 1195, 1201 (9th Cir. 2012).
There is no colorable legal or constitutional claim here where the BIA
applied the correct legal standard and where Martinez Gutierrez has not overcome
the presumption that the agency considered all the relevant evidence and factors.
See Mendez-Castro, 552 F.3d at 978; Szonyi v. Whitaker, 915 F.3d 1228, 1238–
39 (9th Cir. 2019). The record shows that the agency fully considered Martinez
Gutierrez’s evidence and arguments related to the hardship he claimed his family
would face if he were removed from the United States before concluding that he
had not shown the level of “exceptional and extremely unusual hardship” that is
required by the statute. Moreover, even if Martinez Gutierrez had established the
requisite hardship, the agency ultimately denied him cancellation as a matter of
discretion, citing his lengthy criminal history.
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)
(internal quotation marks and citation omitted). The record does not compel the
conclusion that Martinez Gutierrez would face torture at the hands of or with the
consent or acquiescence of the Mexican government. Since his father’s murder
nearly 50 years ago, there is no evidence that Martinez Gutierrez or anyone else
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in his family have been harmed in Mexico, let alone by, or with the consent of,
government actors. See Gomez Fernandez v. Barr, 969 F.3d 1077, 1091 (9th Cir.
2020).
PETITION DENIED.
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