Sergio Ramos Lopez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO RAMOS LOPEZ, No. 20-72686
Petitioner, Agency No. A208-121-718
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Sergio Ramos Lopez, 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 request for a continuance and his
application for asylum, withholding of removal, and relief under the Convention
*
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).
Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a continuance. Ahmed v. Holder, 569
F.3d 1009, 1012 (9th Cir. 2009). We review de novo claims of due process
violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535
(9th Cir. 2004). We review de novo the legal question of whether a particular
social group is cognizable, except to the extent that deference is owed to the BIA’s
interpretation of the governing statutes and regulations. Conde Quevedo v. Barr,
947 F.3d 1238, 1241-42 (9th Cir. 2020). We review factual findings for substantial
evidence. Id. at 1241. We deny in part and dismiss in part the petition for review.
There was no abuse of discretion in the denial of Ramos Lopez’s request for
a continuance where he did not demonstrate good cause. See 8 C.F.R. § 1003.29;
Ahmed, 569 F.3d at 1012 (listing factors to be considered in determining whether
the denial of a continuance constitutes an abuse of discretion).
Ramos Lopez’s due process claim fails because he has not established
prejudice from the denial of the continuance. See Padilla-Martinez v. Holder, 770
F.3d 825, 830 (9th Cir. 2014) (requiring prejudice to prevail on a due process
claim). We lack jurisdiction to consider Ramos Lopez’s claim of IJ bias. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to review claims not presented below).
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To the extent Ramos Lopez contends his first attorney’s performance was
deficient, the BIA did not err in denying his ineffective assistance of counsel claim,
where Ramos Lopez failed to establish prejudice. See Rojas-Garcia v. Ashcroft,
339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an ineffective assistance of
counsel claim a petition must demonstrate prejudice).
In his opening brief, Ramos Lopez does not contend the BIA erred in finding
he waived any challenge to the to the IJ’s dispositive determination that he failed
to establish changed or extraordinary circumstances to excuse his untimely asylum
application. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013)
(concluding petitioner waived challenge to issue not specifically raised and argued
in his opening brief). Thus, Ramos Lopez’s asylum claim fails.
The BIA did not err in concluding that Ramos Lopez failed to establish
membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d
1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular
social group, “[t]he applicant must ‘establish that the group is (1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question’” (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). Thus, Ramos
Lopez’s withholding of removal claim fails.
Substantial evidence supports the denial of CAT relief because Ramos
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Lopez 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).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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