Juan Bernabe v. William Barr

FILED
NOT FOR PUBLICATION
JUL 6 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN FRANCISCO BERNABE, No. 17-72726
Petitioner, Agency No. A092-404-759
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 3, 2020**
Pasadena, California
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,***
District Judge.
Petitioner Juan Francisco Bernabe (Bernabe), a citizen of Guatemala,
petitions for review of the decision of the Board of Immigration Appeals (BIA)
*
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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
dismissing his appeal of the denial of asylum, withholding of removal, and deferral
of removal under the Convention Against Torture (CAT).
Substantial evidence supports the BIA’s determination that Bernabe failed to
establish extraordinary circumstances beyond his control to justify the untimely
filing of his asylum application. See Al Ramahi v. Holder, 725 F.3d 1133, 1138
(9th Cir. 2013) (applying substantial evidence standard). Bernabe has cited no
persuasive authority that his pursuit of an adjustment of status constituted an
exceptional circumstance. As the immigration judge (IJ) determined, Bernabe “has
resided in the United States for multiple decades but did not file his [asylum
application] until over five years after he was ordered removed in absentia.”
Under these circumstances, Bernabe failed to adequately explain his failure to
timely file his asylum application prior to 2010. See Husyev v. Mukasey, 528 F.3d
1172, 1181-82 (9th Cir. 2008).
“To the extent that [Bernabe] asserts that the BIA . . . failed to consider some
or all of [his] evidence [of changed circumstances], [he] has not overcome the
presumption that the BIA did review the record.” Fernandez v. Gonzales, 439 F.3d
592, 603 (9th Cir. 2006) (citation omitted). As reflected by its discussion of
numerous documents in the record and Bernabe’s declaration, the BIA sufficiently
reviewed the evidence submitted by Bernabe to support his claims. See Cole v.
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Holder, 659 F.3d 762, 771 (9th Cir. 2011) (articulating that the BIA is not required
to “discuss each piece of evidence submitted”).
Substantial evidence supports the BIA’s determination that Bernabe failed to
establish a clear probability of persecution or torture on an individualized basis.
See Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010), as amended
(explaining that “a petitioner’s membership in a disfavored group is not sufficient
by itself to meet [his] ultimate burden of proof; some evidence of individualized
risk is necessary for the petitioner to succeed”) (citation and internal quotation
marks omitted) (emphases in the original); Dhital v. Mukasey, 532 F.3d 1044, 1051
(9th Cir. 2008) (stating that, for deferral of removal under the CAT, “the petitioner
must demonstrate that he would be subject to a particularized threat of torture”)
(citation and internal quotation marks omitted) (emphasis in the original).
We reject Bernabe’s contention that his due process rights were violated
when the IJ on remand precluded his counsel from submitting arguments in
support of his application. During the remanded proceedings, Bernabe’s counsel
acknowledged that: she was prepared to submit the case on the record, Bernabe
did not intend to offer additional evidence, and Bernabe was relying on his
declaration to support his claims. The IJ thoroughly reviewed the submitted
evidence, and rendered a reasoned decision supported by substantial evidence
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denying asylum, withholding of removal, and deferral of removal pursuant to the
CAT. As a result, Bernabe fails to demonstrate that “the proceeding was so
fundamentally unfair that [he] was prevented from reasonably presenting his case,”
or “that the outcome of the proceeding may have been affected by the alleged
violation.” Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000) (citations
omitted).
PETITION DENIED.
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