Ayala-Reza v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISEO AYALA-REZA, No. 22-609
Agency No.
Petitioner, A088-660-163
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 9, 2023
Seattle, Washington
Before: BEA and BRESS, Circuit Judges, and OHTA,** District Judge.
Partial Dissent by Judge OHTA.
1. Eliseo Ayala-Reza (“Petitioner”), a native and citizen of Mexico,
petitions this court to review the Board of Immigration Appeals’s (“BIA”)
decision. The BIA dismissed Petitioner’s appeal from the Immigration Judge’s
(“IJ”) order denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jinsook Ohta, United States District Judge for the Southern
District of California, sitting by designation.
under 8 U.S.C. § 1252. We deny the petition.
2. The parties are familiar with the facts of the case, so we do not recite them
here. Given the BIA adopted the IJ’s factual findings and upheld its decision, we
review both decisions. Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013).
All factual determinations are reviewed for substantial evidence. 8 U.S.C.
§ 1252(b)(4)(B). All legal conclusions are reviewed de novo. Martinez v. Barr,
941 F.3d 907, 921 (9th Cir. 2019). We have jurisdiction to review an IJ’s
determination whether the alien can file an untimely asylum application because
he has satisfied the changed circumstances exception when the facts are
undisputed. Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam).
We review a changed circumstances determination for substantial evidence. Id.
3. Petitioner first argues that the BIA erred when it concluded that he is
statutorily ineligible for asylum because he failed to file an asylum application within
the one-year statutory deadline and has not shown changed circumstances to excuse
his untimely filing. The BIA did not err. Petitioner acknowledges that the ongoing
and consistent threats his family received from the Reza family while he has lived in
the United States had existed prior to his last entry into the United States in 2008.
“New evidence confirming what [the alien] already knew . . . does not constitute
changed circumstances.” Budiono v. Lynch, 837 F.3d 1042, 1047 (9th Cir. 2016).
Moreover, Petitioner’s contention that the sexual assault of his daughter by
an unknown assailant supports a finding of changed circumstances lacks merit.
The BIA expressly adopted the IJ’s factual finding that there was “no connection”
2 22-609
between the sexual assault of Petitioner’s daughter and his claim for asylum
arising from the threats from Juan Reza’s family.1 We lack jurisdiction to review
this factual finding because Congress has stripped us of jurisdiction over factual
determinations that support the agency’s changed circumstances analysis.
Gasparyan v. Holder, 707 F.3d 1130, 1133–34 (9th Cir. 2013). Because the agency
found that the sexual assault of Petitioner’s daughter lacked a nexus to his claims of
persecution, the assault cannot be material to his eligibility for asylum and therefore
cannot excuse his late filing. See 8 U.S.C. § 1158(a)(2)(D). Thus, Petitioner’s
application is untimely, and he is statutorily ineligible for asylum relief.
4. Petitioner next contends that he qualifies for withholding of removal.
He argues that he suffered past persecution and that the government of Mexico
would be unwilling or unable to protect him from future persecution if he were
forced to return. Neither argument has merit.
Petitioner contends the agency erred because its finding that he was not
subject to past persecution purportedly ignored the threats his family received
from the Reza family.2 This argument lacks merit. There is no evidence that the
1
The BIA also found in the alternative that “even if his daughter’s assailant was
a Reza family member, . . . th[e] incident is a continuation of an ongoing threat
and not a change in circumstances.” Because the agency’s factual finding that
the sexual assault lacks a nexus to Petitioner’s asylum claim forecloses his
challenge to its changed circumstances determination, we do not address this
alternative basis for the BIA’s decision.
2
Petitioner’s briefing regarding past persecution challenges only the evidentiary
weight the agency gave to the threats his family received from the Reza family.
3 22-609
Reza family followed through on any threats that were made. Unfulfilled threats
are more akin to harassment than past persecution. Hoxha v. Ashcroft, 319 F.3d
1179, 1182 (9th Cir. 2003). And given Petitioner was not personally subject to
harm, the Reza family’s repeated use of empty threats to harass Petitioner’s kin
fails to amount to past persecution. Cf. Sharma v. Garland, 9 F.4th 1052, 1063
(9th Cir. 2021). This is bolstered by the fact that Petitioner relies heavily on
threats made against his family in Mexico while he lived in the United States.
Tamang v. Holder, 598 F.3d 1083, 1091–92 (9th Cir. 2010) (“[W]e have not
found that harm to others may substitute for harm to an applicant . . . who was
not in the country at the time he claims to have suffered past persecution there.”
(emphasis added)). Substantial evidence supports the agency’s conclusion that
Petitioner did not suffer past persecution.
Petitioner also argues that the Mexican government would not be willing
or able to prevent the Reza family from persecuting him were he to return to
Mexico. Petitioner’s “unable or unwilling” argument lacks merit. 3 He conceded
that the Mexican authorities arrested Juan Reza several months after Petitioner’s
father’s murder, obtained a conviction, and sentenced Juan Reza to forty-three
years. The bribe Petitioner paid to the local police is certainly evidence that the
3
While we reject this argument on the merits, we note that Petitioner’s briefing
does not address the issue in any meaningful depth. An indiscriminate citation to
nearly all of the appellate record that is “unaccompanied by analysis and
completely devoid of caselaw” falls far short of what is required by the rules.
Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007). Such briefing risks our
holding that the party has forfeited the argument. Id.4 22-609
police are ineffectual. But the Mexican government, via the local prosecutor,
nonetheless took the significant step of bringing Juan Reza to justice. There is
no evidence in the record that the prosecutor who successfully obtained Juan
Reza’s conviction and his forty-three-year sentence was bribed in the process.
These competing facts reasonably support the agency’s determination that the
Mexican government would be able and willing to protect Petitioner were he to
return to Mexico. Afriyie v. Holder, 613 F.3d 924, 931–34 (9th Cir. 2010)
(holding that evidence of corruption in the alien’s country of origin is only one
factor to consider under the “unable or unwilling” prong of the persecution
analysis), overruled in part on other grounds by Bringas-Rodriguez v. Sessions,
850 F.3d 1051, 1070 (9th Cir. 2017) (en banc). Thus, notwithstanding the bribe,
substantial evidence supports the agency’s determination that the Mexican
government would “control those individuals harassing” Petitioner’s family: the
Mexican government—beyond the corrupt police force—prosecuted and
imprisoned Juan Reza for the murder of Petitioner’s father. Nahrvani v.
Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005).4
Altogether, substantial evidence supports the agency’s determination that
Petitioner is not eligible for withholding of removal.
5. Finally, Petitioner contends that he is entitled to CAT relief. However,
4
The Mexican government’s follow-through in the prosecution of Juan Reza
further undermines Petitioner’s family’s speculation that reporting the Reza
family’s harassing behavior would have been futile. Velasquez-Gaspar v. Barr,
976 F.3d 1062, 1064–65, 1064 n.1 (9th Cir. 2020).
5 22-609
Petitioner’s brief does not challenge the BIA’s determination that he has not
“show[n] that it is more likely than not that he would be tortured in Mexico by or
with the acquiescence of a public official.” Thus, he has forfeited this argument.
Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996). The failure to
challenge this finding is fatal to Petitioner’s CAT claim because the acquiescence
of a public official is necessary for him to obtain relief under CAT. Andrade-
Garcia v. Lynch, 828 F.3d 829, 836–37 (9th Cir. 2016). 5
PETITION DENIED.
5
Even assuming Petitioner challenged acquiescence in his briefs, his CAT claim
would still fail. Petitioner fails to demonstrate that the Mexican government
would fail to intervene were Petitioner tortured. The record evidence in fact
supports the opposite conclusion: as noted above, the Mexican government
apprehended, prosecuted, and imprisoned Juan Reza. See Andrade-Garcia, 828
F.3d at 836 (holding that an unsuccessful police investigation into an alien’s
family member’s death did not amount to government acquiescence, even when
the record showed that criminals were known to bribe police officers).
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FILED
OHTA, District Judge, dissenting in part:
JUN 29 2023
I respectfully dissent in part. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
First, I would find that the BIA applied incorrect law when it found that
Petitioner failed to show changed circumstances. The sole statutory inquiry in
determining whether new evidence constitutes changed circumstances is whether
that evidence would “materially affect the applicant’s eligibility for asylum[.]” 8
U.S.C. § 1158(a)(2)(D); Fakhry v. Mukasey, 524 F.3d 1057, 1063–64 (9th Cir.
2008). This Court has repeatedly emphasized that further evidence of an ongoing
threat can materially affect asylum eligibility, and therefore constitute changed
circumstances. Fakhry, 524 F.3d at 1063–64; Singh v. Holder, 656 F.3d 1047,
1053–54 (9th Cir. 2011); Vahora v. Holder, 641 F.3d 1038, 1044 (9th Cir. 2011)
(“Our law does not require that ‘changed circumstances’ constitute an entirely
new conflict . . . nor does it preclude an individual who has always feared
persecution from seeking asylum because the risk of that persecution increases.”).
The BIA applied an incorrect legal standard when it found that Petitioner’s
daughter’s 2017 sexual assault was “not a change in circumstances” without
analyzing whether this additional instance of violence would materially affect
Petitioner’s eligibility for asylum. Whether the BIA applied the correct legal
standard is a question of law that we must review de novo. Gasparyan v. Holder,
707 F.3d 1130, 1134 (9th Cir. 2013); Martinez v. Barr, 941 F.3d 907, 921 (9th
Cir. 2019). The BIA recited the disputed facts regarding the identity of the person
who sexually assaulted Petitioner’s daughter, and concluded that, regardless of
his identity, the sexual assault was not a change of circumstances because it was
a continuation of an ongoing threat. Contrary to law, it did not examine whether
this newest instance in a series of threats made to Petitioner’s family would
“materially affect [Petitioner’s] eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(D).
By concluding that the 2017 sexual assault did not qualify as changed
circumstances solely because it was a “continuation of an ongoing threat,” the
BIA applied the wrong legal standard. Accordingly, I would remand to allow the
BIA to apply the appropriate legal standard.
Second, I would find that the record compels the conclusion that the
Mexican government is unwilling to protect Petitioner because the police ignored
more than twenty requests for protection and only arrested Juan Reza after the
payment of a large bribe. The record shows that the municipal police first ignored
Petitioner’s father’s reports that Juan Reza was threatening to kill the family.
Juan Reza then murdered Petitioner’s father in the street with a machete in front
of multiple witnesses. Despite the public nature of this murder, the municipal
police refused multiple requests to arrest Juan Reza. Petitioner’s mother and
sister then made over twenty trips to a neighboring municipality to obtain police
intervention there, but the neighboring police refused to help until they were paid
a bribe of approximately $3,000 dollars. Juan Reza was finally arrested nine
months after murdering Petitioner’s father, and was subsequently tried,
2 22-609
convicted, and incarcerated.1 Although my colleagues agree that the police are
unable or unwilling, they nonetheless conclude that the Mexican government is
willing to protect Petitioner because the local prosecutor secured Juan Reza’s
incarceration without a bribe. I respectfully part with the majority’s reasoning
because the practical reality is that Juan Reza’s case only reached the local
prosecutor because the police arrested him, and the police only arrested him
because a bribe was paid. Even if true that the successful arrest, prosecution, and
incarceration of Juan Reza supports the Mexican government’s ability to protect
Petitioner, there is nothing in the record supporting its willingness to do so absent
the payment of a large bribe. Our asylum laws were written to safeguard
individuals whose governments are not willing or able to protect them. 8
U.S.C.A. § 1101(a)(42)(A); J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020). To
say that a government that will only act in the face of a bribe is “willing” to protect
renders that portion of our laws illusory. Therefore, I would find that substantial
evidence does not support the agency’s determination in this respect.
1
Despite Juan Reza’s incarceration, other members of the Reza family
continued to threaten and harass Petitioner’s family. Petitioner’s family testified
that they did not report these threats because they were afraid, because the local
police had previously and repeatedly refused to help, and because the neighboring
police would not help unless paid. Petitioner’s country evidence also
overwhelmingly supports the conclusion that the majority of crimes in Mexico
go uninvestigated, the Mexican populace has little confidence in the police, and
police corruption (including the soliciting of bribes) is commonplace.
3 22-609