Esquivel Mendez v. Garland ( 2023 )

FILED
NOT FOR PUBLICATION
JUL 19 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIGOBERTO ESQUIVEL MENDEZ, No. 21-1141
Petitioner, Agency No.
A206-408-329
v.
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2023**
Before: HAWKINS, S.R. THOMAS and McKEOWN, Circuit Judges
Rigoberto Esquivel Mendez, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (“BIA”) decision affirming an
*
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).
Immigration Judge’s (“IJ”) denial of cancellation of removal, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review the BIA’s findings of fact for
substantial evidence. Ahmed v. Keisler, 504 F.3d 1183, 1190 (9th Cir. 2007).
Under this standard, the BIA’s “[f]indings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
Kamalyan v. Holder, 620 F.3d 154, 1057 (9th Cir. 2010). We deny the petition for
review.
1. The BIA had jurisdiction over Esquivel Mendez’s proceedings even
though the Notice to Appear that initiated the proceedings did not contain the time
and date of the removal hearing. See United States v. Bastide-Hernandez, 39 F.4th
1187, 1188 (9th Cir. 2022) (en banc).
2. Substantial evidence supports the BIA’s determination that Esquivel
Mendez is not entitled to withholding of removal because he did not establish the
requisite nexus between his claimed persecution and his membership in a particular
social group. See Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017)
(explaining the “a reason” nexus standard for withholding of removal). Esquivel
Mendez testified that he fears violent cartels in Mexico will target him as a recent
returnee from the United States because the cartels will think he has money.
2
However, even assuming Esquivel Mendez properly presented a cognizable
particular social group, the documentary evidence and Esquivel Mendez’s brief
testimony about his fears and the crimes committed against his friends are
insufficient to compel the conclusion that the cartels would target him based on his
membership in any group. Rather, the record indicates that Esquivel Mendez fears
conditions of generalized violence in Mexico. See Zetino v. Holder, 622 F3d 1007,
1016 (9th Cir. 2010) (holding that the “desire to be free from harassment by
criminals motivated by theft or random violence by gang members bears no nexus
to a protected ground.”).
3. Substantial evidence supports the BIA’s determination that Esquivel
Mendez is not entitled to CAT relief. The record evidence is insufficient here to
compel a finding that Esquivel Mendez will likely be tortured by or with the
acquiescence of a public official upon his return to Mexico. See Flores-Vega v.
Barr, 932 F.3d 878, 887 (9th Cir. 2019) (explaining CAT standards and noting that
testimony of generalized conditions of violence does not usually establish a
likelihood of torture).
4. Esquivel Mendez has waived review of his application for cancellation of
removal because he does not discuss or argue that claim in the body of his brief.
See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
3
5. The motion for a stay of removal (Dkt. 2) is denied. The temporary stay
of removal is lifted.
PETITION FOR REVIEW DENIED.
4