Jimenez-Santos v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANSELMO JIMENEZ-SANTOS, No. 21-1286
Agency No.
Petitioner, A201-173-679
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 22, 2023**
Pasadena, California
Before: RAWLINSON and BRESS, Circuit Judges, and ZOUHARY,***
District Judge.
Anselmo Jimenez-Santos (Jimenez-Santos), a native and citizen of Mexico,
*
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 Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
petitions for review of a Board of Immigration Appeals (BIA) decision dismissing
his appeal of the denial of his application for Asylum, Withholding of Removal,
and protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252 and we deny the petition for review.
“We review the BIA’s factual findings underlying its determination that a
petitioner failed to establish eligibility for asylum, withholding of removal, and
protection under the CAT for substantial evidence.” Hussain v. Rosen, 985 F.3d
634, 641-42 (9th Cir. 2021) (citation omitted). “We reverse the BIA only where
any reasonable adjudicator would be compelled to conclude to the contrary. . . .”
Id. at 642 (citation and internal quotation marks omitted). We review denial of a
requested continuance for an abuse of discretion. See Arizmendi-Medina v.
Garland, 69 F.4th 1043, 1051 (9th Cir. 2023).
1. To the extent Petitioner challenges it in his petition for review, the
Immigration Judge (IJ) did not abuse his discretion in denying the continuance
requested by Jimenez-Santos on the day of the scheduled hearing. The basis of the
requested continuance was that Jimenez-Santos’s “case fell under Pereira v.
Sessions, 13 S. Ct. 2105 (2018).” However, as Jimenez-Santos offered no proper
basis to support his argument, the IJ acted within his discretion in denying the
motion. See Blanco v. Holder, 572 F.3d 780, 781 n.1 (9th Cir. 2009) (concluding
that “the BIA did not abuse its discretion in refusing to grant Petitioner a
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continuance” because the petitioner produced no evidence).
2. Jimenez-Santos’s ineffective assistance of counsel claim is unpersuasive.
Not only did he fail to comply with the requirements set forth in Matter of Lozada,
19 I&N 637 (BIA 1988), for raising such a claim, he has failed to establish
prejudice. See Hernandez-Ortiz, 32 F.4th 794, 801 (9th Cir. 2022) (recognizing
the requirements of compliance with Lozada and a showing of prejudice for claims
of ineffective assistance of counsel).
3. Substantial evidence supports the denial of withholding of removal.1 “A
petitioner is entitled to withholding of removal if he can establish a clear
probability that his life or freedom would be threatened upon return because of a
protected category.” Singh v. Garland, 57 F.4th 643, 658 (9th Cir. 2023), as
amended (citations and internal quotation marks omitted). Jimenez-Santos does
not point to any evidence in the record compelling the conclusion that his
membership in the particular social group of “Mexican citizens who have lived in
the United States for most of their adult life” would be “a reason” for any
persecution that he would face. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th
Cir. 2017).
1
Jimenez-Santos does not challenge in his opening brief the finding that his asylum
application was untimely. See Diaz-Rodriguez v. Garland, 55 F.4th 697, 727 n.29
(9th Cir. 2022) (en banc) (deeming forfeited an issue that the petitioner failed to
raise in his opening brief).
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4. Finally, substantial evidence supports the BIA’s denial of CAT relief. See
Hussain, 985 F.3d at 641-42. Jimenez-Santos’s argument that “authorities are
largely ineffective at controlling the criminal population” does not establish
government acquiescence. See Garcia-Milan v. Holder, 755 F.3d 1026, 1034-35
(9th Cir. 2014), as amended (noting that general ineffectiveness in preventing
criminal activities does not raise an inference of government acquiescence).
PETITION DENIED.
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