Jose Reynoso Perez v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE REYNOSO PEREZ, AKA Jose No. 20-72326
Eduardo Reynoso Perez Najera,
Agency No. A205-970-682
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 9, 2023**
Pasadena, California
Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.
Jose Reynoso Perez, a native and citizen of Mexico, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) upholding the Immigration
Judge’s (“IJ”) denial of his claims for relief under the Convention Against Torture
*
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).
(“CAT”). Reynoso Perez also challenges the Final Administrative Removal Order
that initiated removal proceedings under 8 U.S.C. § 1228(b). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.1
1. Reynoso Perez argues that the entire removal proceeding is void for lack
of jurisdiction because the Notice of Intent that “commence[d]” removal
proceedings, 8 C.F.R. § 238.1(b)(2)(i), and the subsequent Final Administrative
Removal Order failed to comply with agency regulations and therefore “lack[]
legal effect.” But nothing in the statute or regulations suggests that the regulations
the agency allegedly violated are jurisdictional. See 8 U.S.C. § 1228(b)(4); 8
C.F.R. § 238.1(b)(2); cf. United States v. Bastide-Hernandez, 39 F.4th 1187, 1191
(9th Cir. 2022) (en banc) (“[T]he Supreme Court ‘has long rejected the notion that
all mandatory prescriptions, however emphatic, are properly typed jurisdictional.’”
(quoting Gonzalez v. Thaler, 565 U.S. 134, 146 (2012))).
Reynoso Perez next argues that the alleged violations, even if not
1
After this case was submitted, the Government filed a 28(j) letter notifying
us of a recent Second Circuit decision, Bhaktibhai-Patel v. Garland, 32 F.4th 180,
189-93, 196-97 (2d Cir. 2022), which held that, pursuant to Nasrallah v. Barr, 140
S. Ct. 1683 (2020), decisions made during a withholding-only proceeding are not
final orders of removal subject to judicial review. Our court held otherwise in
Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012). Because “the
jurisdictional issue is complex, but the claim asserted clearly lacks merit,” we
decline to consider whether Ortiz-Alfaro is good law after Nasrallah, assume
without deciding that we have statutory jurisdiction, and deny the petition on the
merits. De La Rosa-Rodriguez v. Garland, 49 F.4th 1282, 1291 (9th Cir. 2022).
The Government agrees that this approach is appropriate here.
2
jurisdictional, warrant relief. But whether his challenge is framed in constitutional
or regulatory terms, Reynoso Perez must demonstrate how he was prejudiced by
the alleged error. See Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir.
2018) (“As a general rule, an individual may obtain relief for a due process
violation only if he shows that the violation caused him prejudice, meaning the
violation potentially affected the outcome of the immigration proceeding.”);
United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979) (“Violation
of a regulation renders a deportation unlawful only if the violation prejudiced
interests of the alien which were protected by the regulation.”). Reynoso Perez has
not done so here, as he does not dispute that he is a non-citizen lacking permanent
resident status who has been convicted of an “aggravated felony,” making him
presumptively removable under the statute. See 8 U.S.C. § 1228(b), (c); Gomez-
Velazco, 879 F.3d at 991. Moreover, Reynoso Perez does not allege that any
purported violations prevented him from collaterally challenging the removal order
by requesting withholding of removal due to a fear of returning to Mexico. Indeed,
he did just that, albeit unsuccessfully.
2. Turning to his application for protection under the CAT, substantial
evidence supports the IJ’s conclusion, adopted by the BIA, that Reynoso Perez
failed to show that it is more likely than not that he would be tortured if returned to
Mexico. Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Contrary
3
to Reynoso Perez’s argument, the IJ considered the aggregate effect of all his
evidence—including his propensity to suffer seizures—in concluding that Reynoso
Perez did not satisfy the CAT’s demanding standard for relief. The record does not
compel the contrary conclusion. Although Reynoso Perez points to incidents in
which his family members were the victims of violence, the record does not
compel the conclusion that Reynoso Perez is more likely than not to face torture
upon his return. His arguments accordingly collapse into a fear of generalized
violence, crime, and corruption, which is not sufficient to warrant relief under the
CAT. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).2
The temporary stay of removal remains in place until the mandate issues.
Reynoso Perez’s motion for a stay of removal (Dkt. No. 57) is otherwise denied.
PETITION DENIED.
2
Guerra v. Barr, 974 F.3d 909 (9th Cir. 2020), does not help Reynoso
Perez. There, the IJ found that, based on extensive record evidence, the petitioner
would more likely than not be harmed by police or government officials working
in psychiatric institutions in Mexico. Id. at 911. We held that the IJ had not
clearly erred in reaching that conclusion on the record before it. Id. at 912. The IJ
did not make a similar finding here. Moreover, Reynoso Perez does not argue that
he is likely to be placed in a psychiatric institution in Mexico.
4