Banuelos-Hernandez v. Garland
| Decision Date | 10 February 2023 |
| Docket Number | 17-72730 |
| Parties | DANIEL BANUELOS-HERNANDEZ, AKA Daniel Banueloshernande, AKA Daniel Hernandez Banuelos, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
Submitted February 7, 2023 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-319-846
Before: BOGGS, [***] IKUTA, and DESAI, Circuit Judges.
Petitioner Daniel Banuelos-Hernandez, a native and citizen of Mexico petitions for review of the Board of Immigration Appeals' ("BIA") order denying his untimely motion to reopen removal proceedings. Mr. Banuelos-Hernandez seeks asylum withholding of removal, and withholding of removal under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. For the following reasons, we deny the petition.
The court reviews the BIA's denial of a motion to reopen for an abuse of discretion. Cui v. Garland, 13 F.4th 991, 995 (9th Cir. 2021). An agency abuses its discretion only if it acts arbitrarily, irrationally, or contrary to the law. Id. at 995-96. We review the BIA's factual findings, including its determinations that an individual is not eligible for asylum, withholding of removal, or withholding under the CAT, for substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1060, 1067 (9th Cir. 2021). Under that standard, "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). When the BIA relies on the immigration judge's ("IJ") reasoning, we review both decisions. Hernandez v. Garland, 47 F.4th 908, 912 (9th Cir. 2022). The court's review is limited to the grounds relied upon by the agency. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). Because substantial evidence supports the BIA's factual findings and the BIA did not abuse its discretion in rejecting Mr. Banuelos-Hernandez's motion to reopen, we deny his petition for review.
Mr. Banuelos-Hernandez asserts that changed country conditions justify an exception to the timeliness requirements for his motion to reopen and asylum application. Typically, a motion to reopen must be filed "within 90 days of the date of entry of a final administrative order of removal." 8 C.F.R. 1003.23(b)(1). Mr. Banuelos-Hernandez filed his motion to reopen sixteen months late.
To qualify for an exception to the timeliness requirements, a petitioner must present evidence demonstrating material changes to country conditions arising in the country to which removal has been ordered, that such evidence was not available and could not have been discovered or presented at the previous proceeding and that, when considered together with the evidence presented at the original hearing, would establish prima facie eligibility for the relief sought. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. 1003.23(b)(4)(i); Feng Gui Lin v. Holder, 588 F.3d 981, 986 (9th Cir. 2009). Whether the circumstances justifying an exception to a time limitation exist is a factual determination reviewed for substantial evidence. See Najmabadi, 597 F.3d at 991.
The BIA did not err when it found that country conditions in Mexico in 2017 were not materially different from those existing at the time of Mr. Banuelos-Hernandez's 2015 hearing and that he therefore does not qualify for exceptions to the timeliness requirements. First, the evidence submitted by Mr. Banuelos-Hernandez was not new or previously unknowable. The assaults and harassment perpetrated by the cartels against Mr. Banuelos-Hernandez and his family before he left Mexico in 2004 were known to him in 2015 and cannot constitute a changed circumstance. Furthermore, the reports and articles that accompanied his motion contain information that was accessible at the time of his removal hearing.[1]
Furthermore, the Board did not err when it found that the newly submitted evidence was not material to Mr. Banuelos-Hernandez's claims. For evidence to be material to withholding and asylum claims, it must demonstrate an increased likelihood of persecution on a protected ground and cannot simply "recount generalized conditions" that fail to demonstrate that the petitioner's "predicament is appreciably different from the dangers faced by [his] fellow citizens." Najmabadi, 597 F.3d at 990 (quotation omitted). The evidence presented by Petitioner is that of generalized conditions that have no specific relevance to Mr. Banuelos-Hernandez or to his claims. This is insufficient to prove that country conditions have materially changed. See id. at 989-90 ().
Mr. Banuelos-Hernandez also argues that he has established a prima facie case for asylum and withholding of removal. Both statutes require petitioners to establish that the persecution they face is motivated, at least in part, by their membership in a protected group. 8 C.F.R. § 1208.13(b)(2)(i)(A); 8 C.F.R. § 1208.16(b). The failure to do so is dispositive. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) ().
Mr Banuelos-Hernandez claims membership in the protected social groups of "individuals who have fled Mexico after refusing to join cartels" and "membership in the Banuelos-Hernandez family," but he fails to present evidence connecting these groups to any persecution he may face. First, Mr. Banuelos-Hernandez presented no evidence that cartels target individuals who fled Mexico after rejecting cartel recruitment upon their return. Nor do any of the country reports or articles state that cartels target individuals who return to Mexico after refusing to join. Second, while ...
To continue reading
Request your trial