Izarraraz Castro v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE FELIPE IZARRARAZ CASTRO, No. 22-399
Agency No.
Petitioner, A205-465-661
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 12, 2023**
San Francisco, California
Before: GOULD, KOH, and DESAI, Circuit Judges.
Jose Felipe Izarraraz Castro, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (“Board”) decision denying his
application for withholding of removal. We have jurisdiction under 8 U.S.C. § 1252.
*
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 Board’s denial of withholding of removal claims is reviewed for substantial
evidence. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We “must
uphold the agency determination unless the evidence compels a contrary
conclusion.” Id. Where, as here, the Board affirms a decision by an Immigration
Judge (“IJ”) without an opinion, “we review the IJ’s decision as if it were the
[Board]’s decision.” Halim v. Holder, 590 F.3d 971, 975 (9th Cir. 2009). We deny
relief.
1. Mr. Izarraraz Castro claims that the IJ did not have jurisdiction because
his Notice to Appear (“NTA”) lacked the time, place, and location of the proceeding.
The government properly argues that this claim is unexhausted. Santos-Zacaria v.
Garland, 598 U.S. 411, 419 (2023) (holding the exhaustion requirement is a non-
jurisdictional claim-processing rule); Fort Bend County v. Davis, 139 S. Ct. 1843,
1849 (2019) (explaining that a court must enforce a claim-processing rule “if a party
properly raises it” (cleaned up)). Had Mr. Izarraraz Castro raised his claim to the
Board, it would nevertheless be foreclosed by United States v. Bastide-Hernandez,
39 F.4th 1187, 1191–92 (9th Cir. 2022) (en banc) (holding that a defective NTA
does not deprive immigration court of subject-matter jurisdiction).
2. Substantial evidence supports the IJ’s decision to deny Mr. Izarraraz
Castro’s application for withholding of removal. To qualify for withholding of
removal, “a petitioner must prove a causal nexus between one of [his] statutorily
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protected characteristics and either [his] past harm or [his] objectively tenable fear
of future harm.” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th Cir. 2023).
Even assuming this claim is properly exhausted, substantial evidence supports the
IJ’s finding that Mr. Izarraraz Castro did not sufficiently allege a nexus between a
protected ground and his alleged fear of persecution. While Mr. Izarraraz Castro
testified that he feared returning to Mexico because of violence experienced by his
extended family members, he presented no evidence demonstrating that he would be
targeted in Mexico because of his family ties. Nor can Mr. Izarraraz Castro’s alleged
fears of persecution based on generalized violence and organized crime in Mexico
establish a nexus to a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016
(9th Cir. 2010) (holding that a non-citizen’s “desire to be free from harassment by
criminals motivated by theft or random violence by gang members bears no nexus
to a protected ground”).
The petition for review is DENIED.
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