Nelvin Garcia-Medina 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NOT FOR PUBLICATION FILED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
NELVIN GARCIA-MEDINA, No. 17-71923
Petitioner, Agency No. A205-869-879
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.
Petitioner Nelvin Garcia-Medina, a native and citizen of Honduras, petitions
for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal
from the Immigration Judge’s (IJ) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(CAT).
We have jurisdiction pursuant to 8 U.S.C. § 1252 over a portion of
Petitioner’s claims. Accordingly, we dismiss in part and deny in part the petition
for review.
1. We lack jurisdiction over Petitioner’s claim for CAT protection. “A
conclusory statement does not apprise the BIA of the particular basis for the
petitioner’s claim nor meaningfully challenge the IJ’s decision on appeal.” Amaya
v. Garland, 15 F.4th 976, 986 (9th Cir. 2021) (cleaned up). Petitioner’s brief to the
BIA, filed by counsel, is devoid of any argument in support of the conclusory
statement that the IJ “erred in denying Mr. Garcia-Medina’s applications by
making erroneous findings of fact concerning . . . whether it is likely the
respondent will suffer torture in Honduras.” This general challenge “does not
apprise the BIA of the particular basis for [Petitioner’s] claim that the IJ erred; it
merely asserts that the IJ erred.” Rizo v. Lynch, 810 F.3d 688, 692 (9th Cir. 2016).
Petitioner’s CAT claim is therefore unexhausted, and we are barred from
considering its merits. 8 U.S.C. § 1252(d)(1); see Amaya, 15 F.4th at 986 (holding
petitioner’s due process claim was unexhausted because “[n]either his notice of
appeal nor his attachment thereto made a clear, non-conclusory argument in
support of his claim”); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).
2. Petitioner’s claims for asylum and withholding of removal fail on the
2
merits.1 Substantial evidence supports the BIA’s determination that Petitioner
failed to establish eligibility for asylum because he showed no nexus between any
past or feared future harm and a protected ground. See Sharma v. Garland, 9 F.4th
1052, 1059–60 (9th Cir. 2021). Applying the deferential substantial evidence
standard of review, the record does not compel the conclusion that the IJ’s findings
were erroneous with respect to Petitioner’s proffered particular social groups.2 See
Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). Petitioner’s claim, at
its core, is based on fear of crime and general lawlessness in Honduras, which is
insufficient to establish eligibility for asylum. See Zetino v. Holder, 622 F.3d
1007, 1016 (9th Cir. 2010) (“An 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.”); see also Macedo Templos v. Wilkinson, 987 F.3d 877, 883
(9th Cir. 2021). Therefore, Petitioner is not a “refugee,” as that term is defined in
the Refugee Act of 1980. 8 U.S.C. § 1101(a)(42)(A).
Further, because we conclude that Petitioner did not meet the lower burden
of proof for his asylum claim, he “necessarily fails to carry the greater burden of
1
Because it is unnecessary to this disposition, we assume without deciding that
Petitioner established the changed circumstances exception to excuse his untimely
asylum application filing. Thus, we address and deny this claim on the merits
based on the administrative record before us.
2
We deem Petitioner’s political opinion argument unexhausted because he did not
meaningfully present it to the BIA. See Barron, 358 F.3d at 677.
3
establishing eligibility for withholding of removal.” Yali Wang, 861 F.3d at 1009.
DISMISSED in part and DENIED in part.
4