Hernandez-Rodriguez v. Garland

FILED
NOT FOR PUBLICATION
JUN 27 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR HERNANDEZ-RODRIGUEZ, No. 22-812
Petitioner, Agency No. A205-297-489
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2023**
Portland, Oregon
Before: RAWLINSON and SUNG, Circuit Judges, and RAKOFF,*** District
Judge.
*
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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Edgar Hernandez-Rodriguez (Hernandez-Rodriguez), a native and a citizen
of Guatemala, petitions for review of a decision of the Board of Immigration
Appeals (BIA) dismissing his appeal of the denial by an Immigration Judge (IJ) of
cancellation of removal, asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. §
1252(a).
“We review for substantial evidence the agency’s determination that a
petitioner has failed to establish eligibility for asylum or withholding of
removal . . .” Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir. 2023) (citation,
alteration, and internal quotation marks omitted). We also review for substantial
evidence the BIA’s determination to deny CAT relief. See Plancarte Sauceda v.
Garland, 23 F.4th 824, 831 (9th Cir. 2022), as amended. “We review de novo the
BIA’s conclusions on pure questions of law. . . .” Iraheta-Martinez v. Garland, 12
F.4th 942, 947 (9th Cir. 2021) (citation omitted).
1. We lack jurisdiction to review the BIA’s discretionary decision to
deny cancellation of removal. See Aguilar-Osorio v. Garland, 991 F.3d 997, 999
(9th Cir. 2021) (per curiam). And, Hernandez-Rodriguez failed to raise a
constitutional claim over which we would have jurisdiction. See Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). “[W]e also have jurisdiction to
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review whether the IJ considered [relevant] evidence in deciding whether to grant
cancellation of removal.” Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).
Although Hernandez-Rodriguez contends that the agency failed to consider the
human rights reports and country conditions, the record does not reflect that the
BIA failed to do so. See Aguilar-Osorio, 991 F.3d at 999 (dismissing the
cancellation of removal claim because the record failed “to indicate that there was
relevant evidence that the BIA failed to consider”).
2. The untimeliness of Hernandez-Rodriguez’s asylum application is
outside the scope of our review because the BIA resolved the asylum claim on
alternative grounds and declined to address the timeliness issue. See Garcia v.
Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (explaining that our review is
limited to the issues decided by the BIA).
3. Substantial evidence supports the BIA’s denial of asylum and
withholding of removal on the basis that Hernandez-Rodriguez failed to
demonstrate “he would be harmed on account of his membership in the Hernandez-
Rodriguez family.” Hernandez-Rodriguez’s father and uncle were harmed because
others wanted their land. Thus, Hernandez-Rodriguez’s family membership was
not “one central reason” or “a reason” for any future persecution to Hernandez-
Rodriguez himself. Zentino v. Holder, 622 F.3d 1007, 1015-16 (9th Cir. 2010), as
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amended (citation omitted); Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir.
2017).1
4. Substantial evidence also supports the BIA’s determination that
Hernandez-Rodriguez’s proposed social group of returning deportees is not
cognizable under our precedent. See Delgado-Ortiz v. Holder, 600 F.3d 1148,
1151-52 (9th Cir. 2010) (per curiam) (holding that the proposed social group of
“returning Mexicans from the United States . . . is too broad to qualify as a
cognizably social group”).
The record also fails to reflect that “a pattern or practice of persecution”
exists “against the group to which [Hernandez-Rodriguez] belongs.” Wakkary v.
Holder, 558 F.3d 1049, 1060 (9th Cir. 2009) (citation and internal quotation marks
omitted).
5. Substantial evidence supports the BIA’s denial of CAT relief. To
establish eligibility for CAT relief, an applicant must demonstrate the existence of
a “particularized threat of torture . . . inflicted by or at the instigation of, or with the
1
The Government contends that Hernandez-Rodriguez failed to exhaust the
claim that he would be harmed on account of his race. But, Hernandez-Rodriguez
actually testified that he did not fear harm due to his race. See Alvarado-Herrera
v. Garland, 993 F.3d 1187, 1196 (9th Cir. 2021) (determining that the petitioner’s
statement denying fear of harm based on a protected ground supported the denial
of relief).
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consent or acquiescence of a public official.” Dhital v. Mukasey, 532 F.3d 1044,
1051 (9th Cir. 2008) (per curiam) (citations, emphasis, and internal quotation
marks omitted). Hernandez-Rodriguez did not establish that he was at risk of a
particularized threat of torture at the instigation of, or with the consent or
acquiescence of a public official. To the contrary, Hernandez-Rodriguez testified
that he believed that the police would protect him.
PETITION DISMISSED IN PART, DENIED IN PART.
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