Olman Perez Lopez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLMAN RODOLFO PEREZ LOPEZ, No. 20-72859
Petitioner, Agency No. A208-411-847
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2023**
Honolulu, Hawaii
Before: BEA, COLLINS, and LEE, Circuit Judges.
Olman Rodolfo Perez Lopez, a native and citizen of Honduras, seeks review
of the Board of Immigration Appeals’s (BIA) dismissal of his appeal of an
Immigration Judge’s (IJ) denial of his motion to terminate removal proceedings and
of his applications 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 that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
We dismiss in part and deny in part.
1. The BIA properly upheld the IJ’s denial of Perez Lopez’s motion to
terminate the removal proceedings. Although the Notice to Appear that initiated the
removal proceedings against him did not include the date or time of the initial
removal hearing, it still vested the IJ with jurisdiction over the proceedings. United
States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc).
2. We do not have jurisdiction to review the BIA’s determination that no
extraordinary circumstances excused Perez Lopez’s delay in filing his asylum
application past the one-year deadline. See 8 U.S.C. § 1158(a)(2). Our review of an
extraordinary-circumstances determination is limited to “constitutional claims and
questions of law,” 8 U.S.C. § 1252(a)(2)(D), so we cannot review such a
determination when it rests on the resolution of a disputed factual question,
Gasparyan v. Holder, 707 F.3d 1130, 1133–34 (9th Cir. 2013). Here, whether Perez
Lopez’s mental disabilities were severe enough to prevent him from timely filing an
asylum application is a disputed factual question. See Alquijay v. Garland, 40 F.4th
1099, 1104 n.8 (9th Cir. 2022).
3. The BIA did not err in concluding that Perez Lopez is ineligible for
withholding of removal because he does not face persecution on account of a
protected ground. Substantial evidence supports the conclusion that the gang
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members who harmed Perez Lopez targeted him in a continued attempt to recruit
him because of his perceived value to the gang, not to punish him for his political
opinions or for his history of resistance to gang recruitment. See Barrios v. Holder,
581 F.3d 849, 856 (9th Cir. 2009), abrogated on other grounds by Henriquez-Rivas
v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010).
4. The BIA did not err in affirming the IJ’s determination that Perez Lopez
is ineligible for protection under CAT. Substantial evidence supports the conclusion
that Perez Lopez does not face a likelihood of torture in Honduras. The IJ properly
concluded that the past attacks against Perez Lopez did not rise to the level of torture.
See Hernandez v. Garland, 52 F.4th 757, 769 (9th Cir. 2022). And although the
record contains other “generalized evidence of violence and crime,” this evidence
does not compel the conclusion that Perez Lopez himself is more likely than not to
be tortured in Honduras. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th
Cir. 2010).
PETITION DISMISSED IN PART, DENIED IN PART.
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