Miguel Hernandez-Lopez v. Jefferson Sessions , 694 F. App'x 558 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL ANGEL HERNANDEZ-LOPEZ, No. 13-73617
also known as Jose Martinez Cuevas, also
known as Luis Montes-Perez, Agency No. A095-774-388
Petitioner, MEMORANDUM **
v.
JEFFERSON B. SESSIONS III, * Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 14, 2017 ***
Seattle, Washington
Before: FARRIS, MURPHY, **** and NGUYEN, Circuit Judges.
*
Jefferson B. Sessions III is substituted for his predecessor as Attorney
General of the United States, pursuant to Fed. R. App. P. 43(c).
**
This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as may be 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).
****
The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.
Miguel Angel Hernandez-Lopez, a native and citizen of Mexico, petitions
for review of an order of the Board of Immigrations Appeals (“BIA”) denying his
request for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). This court has jurisdiction under 8 U.S.C.
§ 1252(a)(1). The BIA’s determinations that a claimant has not established
eligibility for asylum, withholding of removal, or relief under CAT are reviewed
under the deferential substantial-evidence standard. Arteaga v. Mukasey, 511
F.3d 940, 944 (9th Cir. 2007). Applying that standard, we deny the petition for
review.
In denying his application for asylum, the BIA relied exclusively on the
fact that Hernandez-Lopez’s application was untimely and not excused by
changed or extraordinary circumstances. See 8 U.S.C. § 1158(a)(2)(B),
(a)(2)(D). 1 In his brief on appeal, however, Hernandez-Lopez does not address
this issue, focusing instead on the merits of his asylum claim. Because he failed
to brief the untimeliness of his application, Hernandez-Lopez has waived
1
To preserve the issue for further review, the government asserts this court
lacks jurisdiction over Hernandez-Lopez’s appeal of the timeliness of his asylum
application. As the government recognizes, however, this court has concluded we
have jurisdiction over all aspects of such an appeal. See Ramadan v. Gonzales,
479 F.3d 646, 653-54 (9th Cir. 2007) (holding that the court had jurisdiction to
review the BIA’s “changed circumstances” decision); see also Khunaverdiants v.
Mukasey, 548 F.3d 760, 765-66 (9th Cir. 2008) (same as to predicate fact question
of timeliness); Husyev v. Mukasey, 528 F.3d 1172, 1180-82 (9th Cir. 2008) (same
as to BIA’s “extraordinary circumstances” decision).
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appellate review of the issue. See Corro-Barragan v. Holder, 718 F.3d 1174,
1177 n.5 (9th Cir. 2013). The BIA’s determination that Hernandez-Lopez failed
to demonstrate it is more likely than not he will be persecuted or tortured upon a
return to Mexico is supported by substantial evidence. On that basis alone, he is
not entitled to withholding of removal or relief under CAT. Thus, there is no
need for this court to consider the BIA’s nexus determinations (i.e., that any
persecution Hernandez-Lopez might suffer upon a return to Mexico would not be
based on a protected ground and any torture he might suffer would not be at the
hands of, or with the acquiescence of, the government of Mexico) in resolving
Hernandez-Lopez’s petition for review.
PETITION FOR REVIEW DENIED.
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