Martinez-Rivas 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NOT FOR PUBLICATION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
JAVIER MARTINEZ-RIVAS, No. 22-955
Petitioner, Agency No.
A205-316-096
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
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.
Javier Martinez-Rivas, a native and citizen of Mexico, petitions for review
of a Board of Immigration Appeals (“BIA”) decision affirming an Immigration
Judge (“IJ”)’s decision denying asylum, withholding of removal, protection under
the Convention Against Torture (“CAT”), and cancellation of removal. We have
*
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).
jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the BIA issues its own
opinion, “[w]e review only the BIA’s decision, except to the extent that it
expressly adopts the IJ’s opinion.” Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th
Cir. 2012). We review the BIA’s factual findings regarding asylum, withholding
of removal, and CAT protection for substantial evidence, affirming “unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
Gutierrez-Alm v. Garland, 62 F.4th 1186, 1194, 1198, 1201 (9th Cir. 2023)
(citation omitted). Because the parties are familiar with the factual and procedural
history of the case, we need not recount it here. We deny in part and dismiss in
part the petition for review.
1. We deny the petition as to Martinez-Rivas’s asylum claim because he did
not challenge the IJ’s denial of asylum before the BIA. In his petition for review,
Martinez-Rivas does not challenge the BIA’s determination that he waived his
asylum claim by failing to preserve it before the BIA. The BIA thus properly
dismissed Rodriguez Jimenez’s asylum claim as waived. Martinez-Serrano v.
I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).
2. As to withholding of removal, substantial evidence supports the BIA’s
determination that Martinez-Rivas did not establish a “clear probability of
persecution” based on his relationship to his brother. Aden v. Wilkinson, 989 F.3d
2
1073, 1085–86 (9th Cir. 2021) (quoting Korablina v. I.N.S., 158 F.3d 1038, 1045
(9th Cir. 1998)). Martinez-Rivas has not challenged the IJ’s finding that his
testimony about why he feared to return to Mexico was not credible, so he must
rely on documentary evidence in the record. The IJ did find credible that
Martinez-Rivas’s brother, Alejandro, was a federal drug enforcement officer in
Mexico, and the BIA recognized that, based on his occupation, Alejandro faced
violence and threats to himself and his family in Mexico. The BIA also recognized
that letters from another brother, Gerardo, and Martinez-Rivas’s mother indicated
that Gerardo fears retaliation based on Alejandro’s occupation and that both
Gerardo and their motion have been victims of general crime in Mexico. But, as
the BIA noted, the letters do not indicate that any family members have been
harmed as a result of Alejandro’s occupation, see Ruiz-Colmenares v. Garland, 25
F.4th 742, 751 (9th Cir. 2022), and reports of violence against law enforcement do
not supply evidence of an individualized risk that Martinez-Rivas would be harmed
in Mexico, see Sarkar v. Garland, 39 F.4th 611, 622–23 (9th Cir. 2022).
Accordingly, substantial evidence supports the BIA’s determination that
Martinez-Rivas did not establish a clear probability of persecution based on his
relationship to his brother, and we deny this part of the petition.
3. Substantial evidence supports the BIA’s determination that Martinez-
3
Rivas did not qualify for CAT protection. As discussed above, Martinez-Rivas
must rely on the documentary evidence in the record, and the BIA properly
determined that the letters from his mother and Gerardo and the reports of violence
against law enforcement do not prove it is more likely than not that Martinez-Rivas
will be individually targeted for torture if he returns to Mexico. See, e.g.,
Ruiz-Colmenares, 25 F.4th at 751 (denying review where petitioner “offered no
evidence showing he faces any particularized risk of torture”). We therefore deny
this part of the petition.
4. Martinez-Rivas challenges the IJ’s determination that he is ineligible for
cancellation of removal because he failed to demonstrate that removal would result
in an exceptional and extremely unusual hardship to his United States-citizen
children. We lack jurisdiction over this claim. See Martinez-Rosas v. Gonzales,
424 F.3d 926, 930 (9th Cir. 2005); 8 U.S.C. § 1252(a)(2)(B)(i). Although we
retain jurisdiction over colorable questions of law and constitutional claims, 8
U.S.C. § 1252(a)(2)(D), Martinez-Rivas’s arguments the IJ failed to give sufficient
weight to his evidence or based its decision on conjecture are not supported by the
record. See Martinez-Rosas, 424 F.3d at 930 (“To be colorable in this context, . . .
the claim must have some possible validity.”) (internal quotation marks omitted).
We therefore dismiss this part of the petition.
4
PETITION DENIED IN PART, DISMISSED IN PART.
5