Jose Cervantes-Valdovinos v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE CERVANTES-VALDOVINOS, No. 16-71017
Petitioner, Agency No. A089-246-912
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2022**
Seattle, Washington
Before: WARDLAW, GOULD, and BENNETT, Circuit Judges.
Petitioner Jose Cervantes-Valdovinos seeks review of a Board of Immigration
Appeals (BIA) order dismissing his administrative appeal from an Immigration
Judge’s (IJ) decision to deny his applications for asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). We have jurisdiction under
*
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).
8 U.S.C. § 1252 and we deny the petition for review.
1. Petitioner argues that the IJ erred in rejecting his request to continue his merits
hearing based on former President Barack Obama’s pledge to “take action after the
November [2014] election,” which Petitioner construed as referring to liberalization
of immigration law. We disagree. An IJ has discretion to continue hearings for good
cause. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). The IJ did not abuse
his discretion in declining to continue Petitioner’s merits hearing. Petitioner’s claim
about liberalization of immigration law is speculative. See Sandoval-Luna v.
Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (per curiam). It was also
unreasonable for Petitioner to move for an indefinite continuance pending the
possible future passage of favorable immigration laws, which would inconvenience
the immigration court by frustrating final resolution of his case. See Gonzalez v.
I.N.S., 82 F.3d 903, 908 (9th Cir. 1996). And Petitioner received prior continuances
that gave him over a year to prepare for his merits hearing. Because Petitioner did
not establish good cause for another continuance, we deny the petition for review as
to this decision by the IJ. See Ahmed, 569 F.3d at 1012; Sandoval-Luna, 526 F.3d
at 1247.
2. Petitioner claims that the IJ improperly ignored changed circumstances in
applying the one-year filing deadline to his application for asylum. But the BIA
pretermitted this timeliness question in rejecting Petitioner’s asylum claim on the
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merits. We review only the BIA’s order and the parts of the IJ’s decision adopted
by the BIA, see Cordon-Garcia v. I.N.S., 204 F.3d 985, 990 (9th Cir. 2000), and we
cannot uphold a BIA order on grounds not invoked by the BIA, see Sec. & Exch.
Comm’n v. Chenery Corp., 318 U.S. 80, 88 (1943), so we deny the petition for
review as to this timeliness issue.
3. Apart from timeliness, Petitioner contends that the agency wrongly rejected
his asylum application on the merits. His argument is futile due to the applicable
standard of review. Regardless of whether Petitioner set out cognizable particular
social groups, substantial evidence supports the agency’s dispositive conclusions
that he did not establish the requisite past persecution or well-founded fear of future
persecution for asylum. See Sharma v. Garland, 9 F.4th 1052, 1059–60, 1065 (9th
Cir. 2021). In this context, we must deny the petition for review as to the merits of
Petitioner’s asylum claim. See id.Petitioner contends that he established past persecution based on a 2010
incident. He testified that the Mexicali police seized his identification and wallet
with contact information for his family members, demanded money to transport him
across the United States border, jailed him for four days and beat him with weapons,
then called his mother to inquire into his whereabouts after he escaped, but did not
otherwise contact or harm him or his relatives. We reject that contention. We have
deemed comparable or worse mistreatment by local authorities insufficient to
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constitute past persecution. See, e.g., Gu v. Gonzales, 454 F.3d 1014, 1017–21 (9th
Cir. 2006); see also Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004).
Any well-founded fear of future persecution must be objectively reasonable,
and Petitioner’s fear of returning to Mexico, which is based on his family’s land
ownership there, does not meet this standard. See Ahmed v. Keisler, 504 F.3d 1183,
1191 (9th Cir. 2007). Petitioner’s father, who currently owns the land in question,
did not experience any land-related problems between 1996 and Petitioner’s 2014
merits hearing, so any argument that water rights on this land “will likely become
the source of conflict” is speculative. Besides, Petitioner’s parents and three of his
siblings still live in Mexico and he is similarly situated to these relatives vis-à-vis
the family’s land ownership, which undercuts his fear of future harm in Mexico. See
Gormley, 364 F.3d at 1178–79 (citing Lim v. I.N.S., 224 F.3d 929, 935 (9th Cir.
2000)).
4. Petitioner did not challenge the agency’s decision not to grant withholding of
removal in his Opening Brief, so he has forfeited review of this claim. See Etemadi
v. Garland, 12 F.4th 1013, 1026 (9th Cir. 2021). In any event, Petitioner’s inability
to gain asylum is fatal to his request for withholding of removal. See Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
5. Petitioner asserts that the agency erroneously rejected his application for CAT
protection. We disagree. CAT relief is available only to petitioners who show that
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they will more likely than not be tortured in their country by or with the acquiescence
of a public official or other individual acting in an official capacity. 8 C.F.R.
§§ 1208.16(c)(2), 1208.18(a)(1). And substantial evidence supports the BIA’s
conclusion that Petitioner did not satisfy this standard. See Ruiz-Colmenares v.
Garland, 25 F.4th 742, 751 (9th Cir. 2022).
The record establishes that Petitioner’s family had moved away from the
Mexican town where their 1996 land dispute occurred and did not have any land-
related issues between 1996 and Petitioner’s 2014 merits hearing. Also, Mexicali is
a day and a half drive from the town where Petitioner’s family now lives, and the
Mexicali police who allegedly detained Petitioner in 2010 have not contacted or
harmed Petitioner or his family apart from one phone call in 2010. Nor has Petitioner
been contacted or threatened by anyone in Mexico since 2010. And Petitioner was
unaware of any adverse incidents in Mexico involving his spouse or her family. The
record does not compel the conclusion that Petitioner demonstrated the “clear
probability” of torture necessary to gain CAT protection. See East Bay Sanctuary
Covenant v. Biden, 993 F.3d 640, 674 (9th Cir. 2021); Ruiz-Colmenares, 25 F.4th at
751 (denying CAT relief in similar circumstances).
PETITION DENIED.
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