Opinion
20-71193
11-16-2022
FILOMENO MONDRAGON CASTRO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 10, 2022 Seattle, Washington
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A209-820-782
Before: IKUTA and COLLINS, Circuit Judges, and FITZWATER, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Filomeno Mondragon Castro, a native and citizen of Mexico, seeks review of an order of the Board of Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ) denying his application for withholding of removal and relief under the Convention Against Torture (CAT), and denying his motion to terminate proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
The BIA did not err in affirming the denial of Mondragon Castro's motion to terminate his removal proceedings. We have previously rejected Mondragon Castro's argument that the immigration court lacked jurisdiction or authority to conduct removal proceedings and issue a removal order because his initial notice to appear (NTA) did not include the time and date for his first hearing in the immigration court. See United States v. Bastide-Hernandez, 39 F.4th 1187, 1191 (9th Cir. 2022) (en banc); Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019). Mondragon Castro's argument that Kisor v. Wilkie, 139 S.Ct. 2400 (2019), superseded Karingithi is unavailing, because the reasoning in Karingithi is not "clearly irreconcilable" with Kisor, see Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003), and we are bound by subsequent decisions that continue to apply Karingithi, see Bastide-Hernandez, 39 F.4th at 1193-94; see also Aguilar Fermin v. Barr, 958 F.3d 887, 893-94 (9th Cir. 2020).
Substantial evidence supports the denial of Mondragon Castro's application for withholding of removal. The IJ's conclusion that it is not more likely than not that Mondragon Castro will be persecuted on account of being a member of the Party of the Democratic Revolution (PRD) is supported by substantial evidence. Mondragon Castro admits he does not know who shot his father and killed his brother, and his subjective belief that the Institutional Revolutionary Party (PRI) perpetrated these crimes is unsupported by evidence in the record. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003). Nor does Mondragon Castro know if the PRI is continuing to persecute members of the PRD. Mondragon Castro's membership in the Mondragon Castro family does not support a likelihood of future persecution, because no members of his immediate family have been subjected to violence in Mexico in over two decades. "Where the claimed group membership is the family, a family member's continuing safety is a[] . . . persuasive factor" against withholding of removal. Santos-Lemus v. Mukasey, 542 F.3d 738, 743 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). Mondragon Castro also relies on his membership in the proposed particular social group of "Mexican citizens who have resided in the United States for more then ten years who would easily be recognizable by criminal groups," but that proposed group is too "amorphous" and insufficiently discrete to be legally cognizable. Reyes v. Lynch, 842 F.3d 1125, 1140 (9th Cir. 2016).
Finally, substantial evidence supports the BIA's denial of CAT relief. Mondragon Castro's assertions of violence and torture in Mexico are generalized and not particular to him, and thus insufficient to establish eligibility for CAT relief. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010); see also Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008).
PETITION DENIED.
The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.