Solis-Reyes v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTORIANO SOLIS-REYES, No. 22-1024
Agency No.
Petitioner, A099-823-961
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 20, 2023**
San Francisco, California
Before: SILER,*** WARDLAW, and M. Smith, Circuit Judges.
Victoriano Solis-Reyes, a citizen of Mexico, petitions this court to review the
Board of Immigration Appeals’ denial of withholding of removal and Convention
*
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 Eugene E. Siler, United States Circuit Judge for the
Court of Appeals, Sixth Circuit, sitting by designation.
Against Torture (CAT) relief. We have jurisdiction pursuant to 8 U.S.C. § 1252.
We deny the petition for review.
We review legal questions de novo and factual findings for substantial
evidence. Tomczyk v. Garland, 25 F.4th 638, 643 (9th Cir. 2022) (en banc). Under
the latter standard, “administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). Where, as here, the Board of Immigration Appeals (BIA) affirms
the Immigration Judge (IJ) and cites Matter of Burbano, 20 I. & N. Dec. 872 (BIA
1994), “we review both the IJ’s and the BIA’s decisions.” Ruiz-Colmenares v.
Garland, 25 F.4th 742, 748 (9th Cir. 2022) (citation omitted).
1. Solis-Reyes’s removal proceedings were validly commenced, as the
“the failure of an NTA to include time and date information does not deprive the
immigration court of subject matter jurisdiction.” United States v. Bastide-
Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc).
2. The BIA properly determined that Solis-Reyes did not suffer past
persecution, and substantial evidence supports the BIA’s finding that, even assuming
arguendo Solis-Reyes suffered past persecution, he is not likely to be persecuted
after returning to Mexico. See 8 C.F.R. § 208.16(b)(1) (past persecution triggers a
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rebuttable presumption of future persecution).1 Solis-Reyes concedes that he was
never physically harmed in Mexico, but he fears returning to Mexico because of a
long-ago familial land dispute in which his uncle shot at one of his brothers in 1989
and threatened his other brother around 2004. Solis-Reyes’s family relocated after
the 1989 incident and experienced no further incidents involving the uncle—other
than when Solis-Reyes’s brother returned to the disputed land around 2004 and
confronted the uncle. See 8 C.F.R. § 208.16(b)(1)(i)(B) (reasonable internal
location). Solis-Reyes’s family no longer owns the disputed land. See id.§ 208.16(b)(1)(i)(A) (changed circumstances). And Solis-Reyes’s sister has lived
for years in Mexico without any incident. See Sinha v. Holder, 564 F.3d 1015, 1022
(9th Cir. 2009) (“[A] petitioner’s fear of future persecution ‘is weakened, even
undercut, when similarly-situated family members’ living in the petitioner’s home
country are not harmed.” (citation omitted)).
3. The IJ did not deprive Solis-Reyes of due process by declining to hear
his sister’s testimony. To prevail on a due process challenge, Solis-Reyes must show
both that (1) his removal proceedings were “fundamentally unfair,” and (2) he
suffered prejudice, such that “the outcome of the proceeding may have been
1
We need not decide which standard of review—de novo or substantial
evidence—applies to past-persecution determinations because, even applying de
novo review, we find no error in the BIA’s determination here. Cf. Flores Molina
v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022).
3 22-1024
affected.” Zamorano v. Garland, 2 F.4th 1213, 1226 (9th Cir. 2021) (citation
omitted). His sister would have testified that their uncle successfully bribed local
police after the 1989 incident. The IJ reasonably declined to hear such testimony
because, even “taking all of [it] as true,” it did not relate to the dispositive issue on
which the IJ would ultimately deny relief: that Solis-Reyes is not likely to be harmed
upon his return to Mexico.
4. Solis-Reyes’s remaining contentions of legal error also fail. First,
contrary to Solis-Reyes’s assertion, the IJ did not adopt a “bright-line rule” regarding
the passage of time. The IJ made a fact-specific finding that “the record evidence
after 30 years and the selling of the land would sufficiently rebut any [past-
persecution] presumption.” Second, again contrary to Solis-Reyes’s assertion, the
BIA did not treat the presence of his sister in Mexico as “the only factor[] in
determining whether internal relocation is reasonable” (capitalization standardized).
The BIA mentioned the sister’s experience while incorporating the IJ’s decision,
which emphasized that Solis-Reyes had himself internally relocated. Third, the IJ
properly considered the CAT-relief regulatory factors. The IJ considered the
absence of any past torture and Solis-Reyes’s ability to internally relocate. See 8
C.F.R. § 1208.16(c)(3)(i)–(ii). Solis-Reyes identifies no “applicable” pattern of
human rights abuses; nor does he identify what “[o]ther relevant information” the IJ
should have considered. See id. § 1208.16(c)(3)(iii)–(iv).
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The petition for review is DENIED. The temporary stay of removal remains
in place until the mandate issues.
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