Jimenez Magana v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAR JIMENEZ MAGANA, No. 21-229
Agency No.
Petitioner, A205-319-814
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2023**
Pasadena, California
Before: M. SMITH, HAMILTON,*** and COLLINS, Circuit Judges.
Omar Jimenez Magana was born in Mexico in 1990 and entered the United
States in 2000 with his mother. After they came to the United States, unknown
*
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).
***
The Honorable David F. Hamilton, United States Circuit Judge for the
Court of Appeals for the Seventh Circuit, sitting by designation.
persons killed Magana’s father in Mexico for unknown reasons. During removal
proceedings, Magana applied for cancellation of removal, asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). An
Immigration Judge (IJ) denied all relief. The Board of Immigration Appeals (BIA)
found no error in the IJ’s decision and incorporated portions of that decision as its
own.
We review the BIA’s decision as well as the portions of the IJ’s opinion that
the BIA incorporated. Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014).
We treat the BIA’s factual findings as “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We
review the BIA’s determinations of law de novo. Diaz-Reynoso v. Barr, 968 F.3d
1070, 1076 (9th Cir. 2020).
Cancellation of Removal
To qualify for cancellation of removal, an applicant must show, among other
elements, that “removal would result in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). The IJ and
BIA reviewed Magana’s evidence asserting that his U.S.-citizen daughter needs his
financial assistance and would suffer emotionally from their separation. The IJ
found, and the BIA affirmed, that his evidence did not meet the high statutory
2 21-229
standard of “exceptional and extremely unusual hardship.” That was a discretionary
hardship determination that this court does not have jurisdiction to review. See 8
U.S.C. § 1252(a)(2)(B)(i); Patel v. Garland, 142 S. Ct. 1614, 1618, 1622 (2022);
Romero-Torres v. Ashcroft, 327 F.3d 887, 891–92 (9th Cir. 2003).
Although we retain jurisdiction over colorable legal and constitutional claims,
see 8 U.S.C. § 1252(a)(2)(D); Patel, 142 S. Ct. at 1623, Magana’s argument that the
agency made a legal error by failing to consider all relevant evidence is not supported
by the record. See Vilchez v. Holder, 682 F.3d 1195, 1198–1200 (9th Cir. 2012)
(acknowledging jurisdictional exception but dismissing due process challenge on the
merits). As in Vilchez, the record here shows sufficiently that the agency considered
all relevant evidence, and we lack jurisdiction to consider any other aspect of
Magana’s request for cancellation of removal. We must dismiss that portion of his
petition for judicial review.
Asylum
Magana missed the one-year filing deadline for asylum, 8 U.S.C.
§ 1158(a)(2)(B), and the IJ and BIA rejected his argument that circumstances in
Mexico had changed recently to permit his late application. See 8 U.S.C.
§ 1158(a)(2)(D). We review whether substantial evidence supports the agency’s
decision and find that it does. See, e.g., Tampubolon v. Holder, 610 F.3d 1056, 1059
(9th Cir. 2010). Magana did not file for asylum until 2019, which was nineteen years
3 21-229
after he last entered the United States, twelve years after his father’s murder, and
eleven years after he turned eighteen years old. Much of his evidence of changed,
more general circumstances predated his application by at least several years. See
Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir. 2010) (“applicant demonstrating
changed circumstances must further demonstrate that the application was filed
within a reasonable period given those changed circumstances” (citation and internal
quotation marks omitted)). More generally, Magana’s evidence of more recent
criminal violence and cartels in Mexico does not compel a conclusion that
circumstances had changed sufficiently to excuse his years-long delay.
Withholding of Removal
Magana sought withholding of removal under 8 U.S.C. § 1231(b)(3)(A) on
the ground that he faces likely persecution in Mexico based on membership in four
“particular social groups” and his (imputed) anti-cartel political opinion. The agency
denied withholding of removal because Magana did not show a sufficient likelihood
that he would be individually targeted for persecution in the future on any grounds.
The evidence does not compel a contrary conclusion on that decisive point. See
Lolong v. Gonzales, 484 F.3d 1173, 1178–80 (9th Cir. 2007) (en banc); Tamang v.
Holder, 598 F.3d 1083, 1095 (9th Cir. 2010).
The agency also concluded that none of Magana’s four proposed particular
social groups was cognizable. “[T]o establish that a proposed social group is
4 21-229
cognizable for purposes of withholding of removal, an applicant must show,” among
other things, “that the proposed social group is . . . ‘socially distinct within the
society in question,’” and we review the agency’s determination on that score for
substantial evidence. Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020)
(quoting In re M-E-V-G, 26 I. & N. Dec. 227, 237 (BIA 2014)). First, substantial
evidence supports the agency’s conclusion that Magana’s father’s immediate family
lacks social distinctiveness. Second, substantial evidence also supports the finding
that the category of “Mexicans with immediate family members in the United States”
lacks social distinctiveness. Third, we have rejected the cognizability of Magana’s
proposed group of “returnees from the United States” in the past. See Delgado-Ortiz
v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010).
Fourth, Magana argues he will face persecution as a member of a group of
Mexicans who oppose the cartels and because he would have an anti-cartel political
opinion imputed to him. Substantial evidence supports the agency’s finding that this
proposed group lacks particularity and social distinctiveness, and Magana did not
demonstrate that his refusal to join a cartel would be considered an anti-cartel
political opinion. Magana did not show that he would face a sufficient likelihood of
persecution on this ground. See Garcia-Milian v. Holder, 755 F.3d 1026, 1031–33
(9th Cir. 2014).
5 21-229
Convention Against Torture
The IJ found that Magana is not entitled to CAT relief because he had not
established that he is more likely than not to face future torture if he is removed to
Mexico. See 8 C.F.R. § 1208.16(c)(2) (providing standard for protection from
removal under CAT). The IJ considered all of Magana’s testimony and country
conditions evidence in reaching this finding, including Magana’s assertions that he
faced a risk of torture due to having a child in the United States, his father’s murder,
his status as a returnee from the United States, and his opposition to cartels. The
BIA affirmed denial of Magana’s request for protection under the CAT, noting that
Magana’s evidence was insufficient to establish that he personally faced a particular
risk of harm. Substantial evidence supports those findings. E.g., Tamang, 598 F.3d
at 1095. Magana does not know who killed his father or why. He presents only
generalized evidence of the risk of violence in Mexico, which the agency
permissibly concluded was not sufficient to meet his burden. See, e.g., Delgado-
Ortiz, 600 F.3d at 1152.
Accordingly, we dismiss Magana’s challenge to the agency’s denial of
cancellation of removal and deny relief on all other claims.
PETITION DISMISSED IN PART AND DENIED IN PART.
6 21-229