Ayala-Reza v. Garland
| Docket Number | 22-609 |
| Decision Date | 29 June 2023 |
| Parties | ELISEO AYALA-REZA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
Submitted June 9, 2023 Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Argued and Agency No. A088-660-163
Before: BEA and BRESS, Circuit Judges, and OHTA, [*] District Judge.
1. Eliseo Ayala-Reza ("Petitioner"), a native and citizen of Mexico, petitions this court to review the Board of Immigration Appeals's ("BIA") decision. The BIA dismissed Petitioner's appeal from the Immigration Judge's ("IJ") order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.
2. The parties are familiar with the facts of the case, so we do not recite them here. Given the BIA adopted the IJ's factual findings and upheld its decision, we review both decisions. Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013). All factual determinations are reviewed for substantial evidence. 8 U.S.C. § 1252(b)(4)(B). All legal conclusions are reviewed de novo. Martinez v. Barr, 941 F.3d 907, 921 (9th Cir. 2019). We have jurisdiction to review an IJ's determination whether the alien can file an untimely asylum application because he has satisfied the changed circumstances exception when the facts are undisputed. Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam). We review a changed circumstances determination for substantial evidence. Id.
3. Petitioner first argues that the BIA erred when it concluded that he is statutorily ineligible for asylum because he failed to file an asylum application within the one-year statutory deadline and has not shown changed circumstances to excuse his untimely filing. The BIA did not err. Petitioner acknowledges that the ongoing and consistent threats his family received from the Reza family while he has lived in the United States had existed prior to his last entry into the United States in 2008. "New evidence confirming what [the alien] already knew . . . does not constitute changed circumstances." Budiono v. Lynch, 837 F.3d 1042, 1047 (9th Cir. 2016).
Moreover, Petitioner's contention that the sexual assault of his daughter by an unknown assailant supports a finding of changed circumstances lacks merit. The BIA expressly adopted the IJ's factual finding that there was "no connection" between the sexual assault of Petitioner's daughter and his claim for asylum arising from the threats from Juan Reza's family.[1] We lack jurisdiction to review this factual finding because Congress has stripped us of jurisdiction over factual determinations that support the agency's changed circumstances analysis. Gasparyan v. Holder, 707 F.3d 1130, 1133-34 (9th Cir. 2013). Because the agency found that the sexual assault of Petitioner's daughter lacked a nexus to his claims of persecution, the assault cannot be material to his eligibility for asylum and therefore cannot excuse his late filing. See 8 U.S.C. § 1158(a)(2)(D). Thus, Petitioner's application is untimely, and he is statutorily ineligible for asylum relief.
4. Petitioner next contends that he qualifies for withholding of removal. He argues that he suffered past persecution and that the government of Mexico would be unwilling or unable to protect him from future persecution if he were forced to return. Neither argument has merit.
Petitioner contends the agency erred because its finding that he was not subject to past persecution purportedly ignored the threats his family received from the Reza family.[2] This argument lacks merit. There is no evidence that the Reza family followed through on any threats that were made. Unfulfilled threats are more akin to harassment than past persecution. Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). And given Petitioner was not personally subject to harm, the Reza family's repeated use of empty threats to harass Petitioner's kin fails to amount to past persecution. Cf. Sharma v. Garland, 9 F.4th 1052, 1063 (9th Cir. 2021). This is bolstered by the fact that Petitioner relies heavily on threats made against his family in Mexico while he lived in the United States. Tamang v. Holder, 598 F.3d 1083, 1091-92 (9th Cir. 2010) . Substantial evidence supports the agency's conclusion that Petitioner did not suffer past persecution.
Petitioner also argues that the Mexican government would not be willing or able to prevent the Reza family from persecuting him were he to return to Mexico. Petitioner's "unable or unwilling" argument lacks merit.[3] He conceded that the Mexican authorities arrested Juan Reza several months after Petitioner's father's murder, obtained a conviction, and sentenced Juan Reza to forty-three years. The bribe Petitioner paid to the local police is certainly evidence that the police are ineffectual. But the Mexican government, via the local prosecutor, nonetheless took the significant step of bringing Juan Reza to justice. There is no evidence in the record that the prosecutor who successfully obtained Juan Reza's conviction and his forty-three-year sentence was bribed in the process. These competing facts reasonably support the agency's determination that the Mexican government would be able and willing to protect Petitioner were he to return to Mexico. Afriyie v. Holder, 613 F.3d 924, 931-34 (9th Cir. 2010) (), overruled in part on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1070 (9th Cir. 2017) (en banc). Thus, notwithstanding the bribe, substantial evidence supports the agency's determination that the Mexican government would "control those individuals harassing" Petitioner's family: the Mexican government-beyond the corrupt police force-prosecuted and imprisoned Juan Reza for the murder of Petitioner's father. Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005).[4]
Altogether, substantial evidence supports the agency's determination that Petitioner is not eligible for withholding of removal.
5. Finally, Petitioner contends that he is entitled to CAT relief. However, Petitioner's brief does not challenge the BIA's determination that he has not "show[n] that it is more likely than not that he would be tortured in Mexico by or with the acquiescence of a public official." Thus, he has forfeited this argument. Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996). The failure to challenge this finding is fatal to Petitioner's CAT claim because the acquiescence of a public official is necessary for him to obtain relief under CAT. Andrade-Garcia v. Lynch, 828 F.3d 829, 836-37 (9th Cir. 2016).[5]
PETITION DENIED.
First, I would find that the BIA applied incorrect law when it found that Petitioner failed to show changed circumstances. The sole statutory inquiry in determining whether new evidence constitutes changed circumstances is whether that evidence would "materially affect the applicant's eligibility for asylum[.]" 8 U.S.C. § 1158(a)(2)(D); Fakhry v. Mukasey, 524 F.3d 1057, 1063-64 (9th Cir. 2008). This Court has repeatedly emphasized that further evidence of an ongoing threat can materially affect asylum eligibility, and therefore constitute changed circumstances. Fakhry, 524 F.3d at 1063-64; Singh v. Holder, 656 F.3d 1047, 1053-54 (9th Cir. 2011); Vahora v. Holder, 641 F.3d 1038, 1044 (9th Cir. 2011) ().
The BIA applied an incorrect legal standard when it found that Petitioner's daughter's 2017 sexual assault was "not a change in circumstances" without analyzing whether this additional instance of violence would materially affect Petitioner's eligibility for asylum. Whether the BIA applied the correct legal standard is a question of law that we must review de novo. Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013); Martinez v. Barr, 941 F.3d 907, 921 (9th Cir. 2019). The BIA recited the disputed facts regarding the identity of the person who sexually assaulted Petitioner's daughter, and concluded that, regardless of his identity, the sexual assault was not a change of circumstances because it was a continuation of an ongoing threat. Contrary to law, it did not examine whether this newest instance in a series of threats made to Petitioner's family would "materially affect [Petitioner's] eligibility for asylum." 8 U.S.C. § 1158(a)(2)(D). By concluding that the 2017 sexual assault did not qualify as changed circumstances solely because it was a "continuation of an ongoing threat," the BIA applied the wrong legal standard. Accordingly, I would remand to allow the BIA to apply the appropriate legal standard.
Second I would find that the record compels the conclusion that the Mexican government is unwilling to protect Petitioner because the police ignored more than twenty requests for protection and only arrested Juan Reza...
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