OLIVA ZEPEDA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-29No. No. 19-72564

Summary · law.co

Holding. The petition for review was dismissed in part and denied in part. The court lacked jurisdiction over the discretionary cancellation of removal claim and the voluntary departure request, but on the asylum, withholding, and Convention Against Torture claims, the court denied the petition because substantial evidence supported the agency's denials.

Francis Gilberto Oliva-Zepeda, a Honduran national, sought judicial review of immigration decisions denying him cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture. The court lacked jurisdiction to review the discretionary aspects of the cancellation denial. On the merits, the court found substantial evidence supported the agency's factual determinations that Oliva-Zepeda filed his asylum application after the one-year deadline without adequate justification for the delay, and that he failed to establish membership in a cognizable particular social group or that any harm he suffered was connected to a protected ground. The evidence also supported denial of withholding of removal and Convention Against Torture relief because he did not demonstrate a likelihood of government torture if returned to Honduras.

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Key issues

Timeliness of asylum application filing and excuse for delay
Cognizability of proposed particular social groups for asylum eligibility
Nexus between harm experienced and protected grounds for asylum
Likelihood of torture by or with government acquiescence under Convention Against Torture
Scope of judicial review of discretionary immigration determinations

Procedural posture

Oliva-Zepeda petitioned for review of a Board of Immigration Appeals decision upholding an immigration judge's denial of various forms of relief from removal.

Authorities cited

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Opinion · public domain

MEMORANDUM **

Francis Gilberto Oliva-Zepeda, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges (“IJ”) decision denying cancellation of removal and his application for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIAs interpretation of the governing statutes and regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review for substantial evidence the agencys factual findings. Id. at 1241. We dismiss in part and deny in part the petition for review.

We lack jurisdiction to consider Oliva-Zepedas contentions regarding the agencys discretionary denial of cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Monroy v. Lynch, 821 F.3d 1175, 1177-78 (9th Cir. 2016) (this court lacks jurisdiction to review the agencys weighing of the equities).

Substantial evidence supports the agencys determinations that Oliva-Zepeda failed to file his asylum application within the one-year time limit and did not establish changed circumstances sufficient to excuse the untimely filing. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(4).

The agency did not err in concluding that Oliva-Zepedas proposed social groups were not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question’ ” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). Substantial evidence supports the agencys determination that Oliva-Zepeda did not otherwise establish that the harm he experienced or fears was or would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicants “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Oliva-Zepedas withholding of removal claim thus fails.

Substantial evidence supports the agencys denial of CAT relief because Oliva-Zepeda 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 Honduras. 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. The motion for a stay of removal (Docket Entry No. 1) is otherwise denied.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

FOOTNOTES

. We lack jurisdiction to consider Oliva-Zepedas request for voluntary departure because he failed to exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).