Victor Hernandez-Balderas v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR HERNANDEZ-BALDERAS, No. 15-71618
AKA Victor Hernandez,
Agency No. A201-284-773
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2021**
Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.
Victor Hernandez-Balderas, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his request to
remand and dismissing his appeal from an immigration judge’s (“IJ”) decision
denying his application for asylum, withholding of removal, and relief under the
*
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).
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review de novo questions of law, Conde Quevedo v. Barr, 947 F.3d
1238, 1241 (9th Cir. 2020), and we review factual findings for substantial
evidence. Id. We review for abuse of discretion the denial of a motion to remand.
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny in part and
dismiss in part the petition for review.
Hernandez-Balderas does not raise, and has therefore waived, any challenge
to the BIA’s determination that he failed to establish that the proposed particular
social group defined as “Mexican nationals returning from the United States” is
legally cognizable. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th
Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are
waived). To the extent Hernandez-Balderas raises a new family-based particular
social group, we lack jurisdiction to consider the issue because he failed to raise
this social group to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).
Further, substantial evidence supports the BIA’s determination that Hernandez-
Balderas failed to establish that the harm he suffered or fears in Mexico was or
would be on account of a protected ground, including an actual or imputed political
opinion. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s
“desire to be free from harassment by criminals motivated by theft or random
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violence by gang members bears no nexus to a protected ground”). Thus,
Hernandez-Balderas’s asylum and withholding of removal claims fail.
The BIA did not err or abuse its discretion in declining to remand for further
consideration in light of Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014). The
BIA also did not abuse its discretion in declining to remand for consideration of
humanitarian asylum, where Hernandez-Balderas is ineligible for humanitarian
asylum because he did not establish that he suffered past persecution on account of
a protected ground. See Belishta v. Ashcroft, 378 F.3d 1078, 1080 (9th Cir. 2004)
(order) (to be eligible for humanitarian asylum, “an applicant must still establish
past persecution on account of a protected ground”). We reject as unsupported by
the record Hernandez-Balderas’s contention that the BIA gave no consideration to
his argument requesting humanitarian asylum based upon the “other serious harm”
provision in 8 C.F.R. § 1208.13(b)(1)(iii)(B) and that it failed to properly consider
this claim.
Substantial evidence supports the agency’s denial of CAT relief because
Hernandez-Balderas failed to show it is more likely than not he would be tortured
if returned to Mexico. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.
2009) (no likelihood of torture). We reject Hernandez-Balderas’s contention that
the BIA failed to consider his arguments or that it failed to properly consider his
CAT claim. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the BIA
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adequately considered evidence and sufficiently announced its decision).
Hernandez-Balderas’s contention that the IJ refused to consider evidence is not
supported by the record.
Finally, Hernandez-Balderas’s contention regarding his notice to appear is
foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir. 2019)
(notice to appear need not include time and date of initial hearing to vest
jurisdiction in the immigration court). See also United States v. Bastide-
Hernandez, --- F.3d ----, 2021 WL 345581 (9th Cir. 2021).
As stated in the court’s August 14, 2015 order, 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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