Francisco Jimenez-Valero v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JIMENEZ-VALERO, No. 17-71957
Petitioner, Agency No. A208-265-189
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 29, 2022**
Seattle, Washington
Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
Francisco Jimenez-Valero, a citizen and native of Mexico, petitions for review
of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s
order of removal denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We deny the petition for
*
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).
review.
1. Jimenez-Valero has failed to establish changed or extraordinary
circumstances to excuse the twenty-year delay in filing his application for asylum.
See 8 U.S.C. § 1158(a)(2)(D). On appeal, Jimenez-Valero argues that the issuance
of an Interpol Notice advising he is sought pursuant to an arrest warrant in Mexico
constitutes a changed circumstance that excuses his failure to apply for asylum
within the statutory timeframe. But the issuance of the Interpol Notice does not itself
constitute a “change”; it merely provided international notice of the pre-existing fact
that Mexico sought to prosecute Jimenez-Valero, a fact that Jimenez-Valero testified
that he knew about since his brother had been detained and ultimately arrested on
the same charges in 1995 or 1996. While it is not necessary that the conditions faced
by an asylum applicant invoking the statutory exception be entirely new or distinct
from threats previously encountered by the applicant, see Vahora v. Holder, 641
F.3d 1038, 1044 (9th Cir. 2011), the change on which Jimenez-Valero relies—the
predicate criminal proceedings—have existed, and Jimenez-Valero has known about
them, for decades, see Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013).
That a “red flag” notice was issued by Interpol does not alter the preexisting
landscape.1
1
Moreover, even if the issuance of the Interpol Notice could constitute a changed
circumstance, “[p]rosecution for violating . . . laws of general applicability [does]
not constitute persecution, unless the punishment [is] imposed for invidious
2
2. Nor has Jimenez-Valero met his burden of establishing eligibility for
withholding of removal. To be eligible for withholding of removal, the burden is on
Jimenez-Valero to demonstrate “it is more likely than not that he would be subject
to persecution on one of the specified grounds,” Robleto-Pastora v. Holder, 591 F.3d
1051, 1057 (9th Cir. 2010) (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1190
(9th Cir. 2006)), of “race, religion, nationality, membership in a particular social
group, or political opinion upon removal,” Silva v. Garland, 993 F.3d 705, 719 (9th
Cir. 2021) (quoting 8 C.F.R. § 1208.16(b)(2)).
Assuming without deciding that Jimenez-Valero’s proposed group, “former
police officers,” can constitute a cognizable social group, substantial evidence
supports the agency’s conclusion that Jimenez-Valero can reasonably relocate in
Mexico. The record indicates that, even if gang members did have an interest in
Jimenez-Valero decades ago, he lived without incident in Tijuana prior to entering
the United States and other family members that are former police officers have lived
in Mexico without incident.
reasons.” Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), overruled on other
grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). While Jimenez-
Valero asserted that the crime with which he and his brother were charged was
“fabricated,” Jimenez-Valero conceded during testimony before the Immigration
Judge that the court order releasing Jimenez-Valero’s brother from jail did not
indicate that the case was fabricated. Substantial evidence supports the Board’s
conclusion that he failed to establish that the criminal proceedings rise to the level
of persecution.
3
3. Finally, substantial evidence supports the Board’s holding that
Jimenez-Valero is ineligible for protection under the CAT. To qualify for CAT
protection, the applicant must “establish that it is more likely than not that he or she
would be tortured if removed” by or with the consent or acquiescence of the Mexican
government. Id. (quoting 8 C.F.R. § 1208.16(c)(2)). Jimenez-Valero’s briefing does
not point to any evidence in the record or make any argument to support a finding
that Jimenez-Valero will likely be tortured, and for the same reasons that substantial
evidence supports the Board’s conclusion that he is not eligible for withholding of
removal, Jimenez-Valero has not established entitlement to protection under the
CAT.2
Therefore, the petition is DENIED.
2
Jimenez-Valero additionally argued that the Board failed to address his contention
that he requested and was denied voluntary departure. But the Board noted that
Jimenez-Valero testified unequivocally before the IJ that he would not voluntarily
depart, and there is no basis to disturb that conclusion.
4