Johnny Garcia-Lopez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY GARCIA-LOPEZ, AKA Rudy No. 19-71251
Garcia-Lopez,
Agency No. A088-915-392
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 8, 2020**
Pasadena, California
Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.
Johnny Garcia-Lopez, a native of Guatemala, petitions for review of the
denial of his application for withholding of removal and protection under the
Convention Against Torture (CAT). We review factual findings under the
substantial evidence standard, and such findings “are conclusive unless any
*
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).
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014).
Constitutional and legal challenges are reviewed de novo. Arbid v. Holder, 700
F.3d 379, 385 n.3 (9th Cir. 2012). We deny Garcia-Lopez’s petition.
1. Substantial evidence supports the Board of Immigration Appeals’
(BIA) conclusion that Garcia-Lopez was targeted for extortion for monetary
reasons, not a protected characteristic. See Barrios v. Holder, 581 F.3d 849, 856
(9th Cir. 2009) (finding no nexus to protected ground where persecution was based
on “economic and personal reasons”). Garcia-Lopez’s own testimony confirms
that the reason he was pulled over and extorted was because the officers thought he
had money.
Garcia-Lopez argues that the BIA and immigration judge (“IJ”) should have
considered his case under the “extortion plus” scenario articulated in Ayala v.
Sessions, 855 F.3d 1012, 1021 (9th Cir. 2017) (describing “extortion plus” claims
as those in which aliens claim extortion based “partly for economic reasons” and
“partly” “on the basis of a protected characteristic”) (citing Borja v. INS, 175 F.3d
732, 736 (9th Cir. 1999)). But, the IJ did so and concluded Garcia-Lopez failed to
make such a claim. The BIA upheld that determination. Substantial evidence
supports this determination. As discussed, Garcia-Lopez stated that the police
officers targeted him “just for the money.” While Garcia-Lopez believed the
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officers imputed wealth to him because of his U.S.-citizen wife, he did not tie his
persecution to who his wife was or his relationship to her. Cf. Ayala, 855 F.3d at
1020–21 (“extortion plus” claim based on family’s ownership of hotels).
2. Substantial evidence also supports the determination that Garcia-
Lopez’s CAT claim was speculative. Garcia-Lopez was extorted a few times
during 2012 and 2013. His parents and siblings have remained in Guatemala
without incident. He also did not know whether the two officers primarily
responsible for his extortion were still on the force, whether they would still target
him many years later, or whether he would be able to avoid those officers by
moving to a different part of Guatemala. There was also evidence that Guatemala
has made efforts to control corruption by police officers. 1
3. Garcia-Lopez also argues that he was deprived of a “full and fair
hearing of his claims and a reasonable opportunity to present evidence on his
behalf.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). He contends he was
deprived of due process in three ways: (1) the IJ failed to explain the requirements
of particular social groups or to inquire into relevant facts that would have shown
1
Garcia argues that efforts undertaken by the national government does not
necessarily negate the government acquiescence element when the torture is
committed by local officials. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1186
(9th Cir. 2020) (finding government acquiescence despite evidence of national
government’s efforts to protect the persecuted group). But the IJ and BIA relied on
the country conditions evidence to support their finding on the likelihood of torture
element, not government acquiescence.
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he qualified for a family-based group; (2) the IJ failed to continue the hearing so he
could obtain evidence to support his claim; and (3) Garcia-Lopez was provided
with an English-language I-589 that was not explained to him or reviewed with a
translator. None is persuasive.
First, IJs only have a duty to explain the possible relief available to a
petitioner. See 8 C.F.R. § 1240.11(c)(1)(i) (the IJ must advise the alien “that he or
she may apply for asylum . . . or withholding of removal”); United States v. Lopez-
Velasquez, 629 F.3d 894, 895 (9th Cir. 2010) (en banc) (holding that, subject to
exceptions not relevant here, “an IJ’s duty is limited to informing an alien of a
reasonable possibility that the alien is eligible for relief at the time of the hearing”).
Garcia-Lopez also cannot establish prejudice from any alleged error because he
fails to point to any new arguments or evidence he would have relied on had the IJ
probed his family-based claim further. See Colmenar, 210 F.3d at 971 (petitioner
must show prejudice from due process violations).
Second, the IJ did not abuse his discretion in denying Garcia-Lopez’s
continuance requests. See Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). Garcia
was granted multiple continuances before the IJ denied further requests. Without
more, that the IJ did not give Garcia-Lopez as much time as he would have liked
does not constitute an abuse of discretion. This is particularly true given that
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Garcia-Lopez admitted that none of the evidence he was waiting for was specific to
him, nor did it show that he was persecuted because of a protected characteristic.
Finally, Garcia-Lopez was not entitled to a Spanish-language version of his
I-589 or to have an interpreter help him fill it out. Garcia-Lopez does not identify
what prejudice resulted from him not receiving an I-589 in Spanish or the
assistance of an interpreter. He points to the fact that he mistakenly checked “no”
in response to the question about whether he had ever been threatened in
Guatemala. But the IJ did not hold this against him and clearly credited his
testimony that he was threatened by the police.
Accordingly, Garcia’s petition is DENIED and his motion to stay removal is
DENIED AS MOOT.
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