Ruben Obregon Laguna v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN ALEXANDER OBREGON No. 16-72369
LAGUNA, AKA Ruben Laguna, AKA
Ruben Obregon Laguna, AKA Ruben Agency No. A205-721-230
Obregon, AKA Ruben Alexander Obregon,
Petitioner, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Ruben Alexander Obregon Laguna, a native and citizen of Nicaragua,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
*
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).
application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”), and his requests to continue proceedings. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law.
Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We review for
substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006). We review de novo claims of due process
violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535
(9th Cir. 2004). We review for abuse of discretion the denial of a continuance.
Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny in part and
dismiss in part the petition for review.
The BIA did not err in its determination that Obregon Laguna failed to
meaningfully challenge the IJ’s time bar determination as to his asylum claim. See
Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019) (no error in BIA’s waiver
determination). We lack jurisdiction to review Obregon Laguna’s contentions as
to the merits of his asylum claim because he failed to raise them 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). Thus, Obregon Laguna’s asylum
claim fails.
Substantial evidence supports the agency’s determination that Obregon
Laguna failed to establish he suffered harm that rises to the level of persecution.
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See Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (“Persecution . . . is an
extreme concept that does not include every sort of treatment our society regards as
offensive.” (internal quotation and citation omitted)). Substantial evidence also
supports the agency’s determination that Obregon Laguna failed to establish a clear
probability of future persecution on account of a protected ground. See Tamang v.
Holder, 598 F.3d 1083, 1094-95 (9th Cir. 2010) (fear of future persecution was not
objectively reasonable). Thus, Obregon Laguna’s withholding of removal claim
fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Obregon Laguna failed to show it is more likely than not he would be tortured by
or with the consent or acquiescence of the government if returned to Nicaragua.
See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
Obregon Laguna’s contentions that the agency violated his right to due
process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error and
prejudice are required to prevail on a due process claim; see also Fernandez v.
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the
presumption that the BIA reviewed the record).
There was no abuse of discretion in the denial of Obregon Laguna’s request
for a continuance, orally raised to the IJ on June 24, 2015, where he did not
demonstrate good cause. See 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (listing
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factors to be considered in determining whether the denial of a continuance
constitutes an abuse of discretion). To the extent Obregon Laguna challenges the
denial of his motion to continue, filed on May 15, 2015, we lack jurisdiction to
consider it. See Barron, 358 F.3d at 677-78.
We do not consider the materials Obregon Laguna references in his opening
brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,
963-64 (9th Cir. 1996) (en banc).
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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