Javier Alvarez Cazares v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER ALVAREZ CAZARES, AKA No. 20-71165
Javier Alvarez,
Agency No. A205-318-326
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2022**
San Francisco, California
Before: W. FLETCHER and KOH, Circuit Judges, and KANE,*** District Judge.
Javier Alvarez Cazares (“Alvarez”), a native and citizen of Mexico, petitions
for review of an order of the Board of Immigration Appeals (“BIA”) denying his
*
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).
***
The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
motion to reopen removal proceedings based on changed country conditions in
Mexico. The BIA concluded that Alvarez failed to demonstrate prima facie
eligibility for asylum and related relief. We have jurisdiction under 8 U.S.C. §
1252.
We review the BIA’s denial of a motion to reopen for abuse of discretion
and will not overturn the BIA’s decision unless it was arbitrary, irrational, or
contrary to law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We review
the BIA’s “legal conclusions de novo and its factual findings for substantial
evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)
(en banc) (citations omitted). Substantial evidence review means that
“administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). We deny the petition.
1. The BIA’s denial of Alvarez’s motion to reopen was not an abuse of
discretion because substantial evidence supports its conclusion that he failed to
demonstrate prima facie eligibility for asylum and withholding of removal.
Generally, an alien must file a motion to reopen removal proceedings within ninety
days of a final removal order. 8 C.F.R. § 1003.2(c)(2). An alien may nonetheless
file a belated motion to reopen to apply for asylum or withholding based on
“changed circumstances arising in the country of nationality or in the country to
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which deportation has been ordered.” Id. § 1003.2(c)(3)(ii); see 8 U.S.C. §
1229a(c)(7)(C)(ii). To warrant reopening, a movant must proffer sufficient
evidence to establish prima facie eligibility for the relief sought. Ramirez-Munoz
v. Lynch, 816 F.3d 1226, 1228 (9th Cir. 2016). To establish prima facie eligibility,
a movant must show “a reasonable likelihood that the statutory requirements for
relief have been satisfied.” Salim v. Lynch, 831 F.3d 1133, 1139 (9th Cir. 2016)
(quoting Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003)).
The record does not compel the conclusion that Alvarez established a
reasonable likelihood that he is eligible for asylum and withholding of removal.
Accordingly, the BIA did not abuse its discretion in denying his motion to reopen
on that basis. Even if Alvarez’s proposed social groups—consisting of individuals
with landowner status or family membership—could potentially serve as a basis
for asylum and withholding of removal under certain circumstances, the affidavit
he submitted does not compel the conclusion that the crime he fears is motivated
by his membership in one of those groups, as opposed to theft or random violence,
as the BIA concluded. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(holding that “[a]n alien’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”); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010)
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(holding that “[a]sylum is not available to victims of indiscriminate violence,
unless they are singled out on account of a protected ground”).
Moreover, contrary to Alvarez’s contention, because the BIA concluded that
Alvarez failed to demonstrate prima facie eligibility for asylum and withholding of
removal, it was not required to address whether he established changed country
conditions justifying the grant of his motion to reopen. See INS v. Bagamasbad,
429 U.S. 24, 25-26 (1976) (concluding that the “general rule” that “courts and
agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach” is applicable in immigration proceedings).
2. We similarly conclude that the BIA did not abuse its discretion when
it declined to grant reopening for failure to demonstrate prima facie eligibility for
CAT protection. Alvarez supported his motion by reference to general conditions
of criminal violence and corruption, which fail to demonstrate a “particularized
threat of torture.” Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004) (emphasis
added) (citation omitted); see Delgado-Ortiz, 600 F.3d at 1152 (concluding that
“[p]etitioners’ generalized evidence of violence and crime in Mexico is not
particular to [p]etitioners and is insufficient to meet” the standard for CAT
protection). The BIA was therefore not required to address whether he established
changed country conditions. See Bagamasbad, 429 U.S. at 26.
PETITION DENIED.
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