Opinion
21-70833
10-20-2022
FELIPE RODRIGUEZ FERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 18, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098-385-736
Before: CLIFTON, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM [*]
Felipe Rodriguez Fernandez petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal of the Immigration Judge's ("IJ") final order of removal. We deny the petition.
Because the parties are familiar with the facts, we recite only those necessary to our order. Rodriguez Fernandez moved from Mexico to California in 1996, returned to Mexico in 2001, and moved back to California in 2007. After being served a Notice to Appear in 2010, Rodriguez Fernandez applied for withholding of removal, cancellation of removal, and protection from removal under the Convention Against Torture ("CAT"). Rodriguez Fernandez and his wife-a United States permanent resident who suffers from chronic pain and stress-testified at the removal hearing that Rodriguez Fernandez's removal would impose financial difficulties on his wife and her adult children from a separate relationship. Rodriguez Fernandez expressed concern over criminality in Mexico-he believes he will seem wealthy because he came from America. The IJ denied all relief and ordered removal. As to cancellation, the IJ concluded that Rodriguez Fernandez lacked continuous physical presence in the United States and that his removal would not impose an "exceptional and extremely unusual hardship" on his wife. See 8 U.S.C. 1229b(b)(1). The BIA dismissed Rodriguez Fernandez's appeal and, in doing so, adopted the IJ's hardship determination.
Because the BIA relied on the IJ's decision, we review both decisions. Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014). We review factual findings under the highly deferential substantial evidence standard. Id. We review legal questions de novo. Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011).
We may assume statutory jurisdiction arguendo to review an IJ's hardship determination where, as here, the facts are not in dispute and the petitioner's challenge "clearly lacks merit." De La Rosa-Rodriguez v. Garland, No. 20-71923, 2022 WL 4477330, at *7 (9th Cir. Sept. 27, 2022). The IJ found credible testimony that Rodriguez Fernandez's removal might require his wife to work longer hours and rely further on her adult children for financial support. She may no longer have Rodriguez Fernandez's support in managing her stress and chronic pain. These are precisely the types of difficulties "which would normally be expected from the deportation of an alien with close family members here." In Re Monreal-Aguinaga, 23 I. &N. Dec. 56, 63-64 (BIA 2001). Even assuming we have jurisdiction to review this portion of Rodriguez Fernandez's petition, it is denied.
We decline to remand this case for consideration of Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021), because the BIA affirmed denial of Rodriguez Fernandez's cancellation application based on a lack of hardship. Cf. Abovian v. INS, 219 F.3d 972, 979 (9th Cir. 2000).
We deny the remainder of Rodriguez Fernandez's petition regarding his withholding and CAT applications. Rodriguez Fernandez's proposed particular social group of Americanized Mexican nationals is not cognizable. Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228-29 (9th Cir. 2016). Rodriguez Fernandez's concern over criminality "bears no nexus to a protected ground." Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). The evidence does not compel a conclusion that Rodriguez Fernandez faces a particularized threat of torture. Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008).
PETITION DENIED.
[*] 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).