Juan Sanchez-Martinez v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN SANCHEZ-MARTINEZ, No. 16-73247
Petitioner, Agency No. A095-750-384
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2022**
Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.
Juan Sanchez-Martinez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of
law and we review for substantial evidence the agency’s factual findings. Tamang
v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). We dismiss in part and deny in
part the petition for review.
We lack jurisdiction to review the agency’s conclusion that Sanchez-
Martinez did not establish extraordinary circumstances excusing the delay in filing
his asylum application because the underlying facts are disputed. See Gasparyan
v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (court lacked jurisdiction to review
petitioner’s challenge to the agency’s extraordinary circumstances determination
because it rested on an underlying factual dispute). Sanchez-Martinez’s
contentions that the agency applied the incorrect legal standard to the extraordinary
circumstances claim or ignored facts in conducting its analysis fail as unsupported
by the record. See Gasparyan, 707 F.3d at 1134-35; Fernandez v. Gonzales, 439
F.3d 592, 603 (9th Cir. 2006).
Substantial evidence supports the agency’s determination that the harm
Sanchez-Martinez suffered does not rise to the level of persecution. See Kohli v.
Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007) (persecution “is an extreme concept
that does not include every sort of treatment our society regards as offensive”
(internal quotation marks and citation omitted)); Guo v. Ashcroft, 361 F.3d 1194,
1203 (9th Cir. 2004) (the court “look[s] at the totality of the circumstances in
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deciding whether a finding of persecution is compelled”); see also Hernandez–
Ortiz v. Gonzales, 496 F.3d 1042, 1045-46 (9th Cir. 2007) (the petitioner’s age at
the time of the past harm must be considered in the rise to the level analysis).
Substantial evidence also supports the agency’s determination that Sanchez-
Martinez failed to establish a clear probability of future persecution because he did
not demonstrate that he could not reasonably relocate within Mexico. See 8 C.F.R.
§ 1208.16(b)(2)-(3). Thus, Sanchez-Martinez’s withholding of removal claim
fails.
Substantial evidence supports the agency’s denial of CAT relief because
Sanchez-Martinez failed to show it is more likely than not he would be tortured by
or with the consent or acquiescence of the government if returned to Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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