Opinion
20-73204
10-27-2022
FRANK OMAR GARCIA-ESQUIVEL, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submission Deferred May 16, 2022
Resubmitted October 27, 2022 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A216-572-482
Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.
MEMORANDUM [*]
Frank Omar Garcia-Esquivel, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' (BIA) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Garcia-Esquivel contends the immigration judge (IJ) violated his right to due process by denying him a full and fair hearing. We review this claim de novo, Benedicto v. Garland, 12 F.4th 1049, 1058 (9th Cir. 2021), and conclude that it fails because he has not established prejudice from any alleged violation, Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1058 (9th Cir. 2005) (stating that to succeed on a due process claim, a petitioner "must show prejudice").
Garcia-Esquivel contends the IJ failed to act as a neutral fact finder. Although the IJ was sometimes seemingly impatient and curt, "a mere showing that the IJ was unfriendly, confrontational, or acted in an adversarial manner is not enough" to show the IJ abandoned its role as a neutral arbiter. Rizo v. Lynch, 810 F.3d 688, 693 (9th Cir. 2016). The record reflects that the IJ acted to "limit testimony in order to focus the proceedings and exclude irrelevant evidence." Oshodi v. Holder, 729 F.3d 883, 890 n.9 (9th Cir. 2013) (quotation marks and citation omitted. Garcia-Esquivel has not shown that these actions prevented him from presenting his case. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
The IJ did not abuse its discretion or violate Garcia-Esquivel's due process rights by denying a continuance. See Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019) (reviewing IJ's "decision not to continue a hearing" for abuse of discretion). Garcia-Esquivel argues that, although the IJ granted a nine-day continuance, it was insufficient to allow him to "file additional documents with the court." Garcia-Esquivel, however, had sufficient time to obtain new counsel to submit supporting documents before his merits hearing. The IJ did not abuse its discretion by denying a longer continuance. See 8 C.F.R. §§ 1003.29, 1240.6 (an IJ may grant a continuance for good cause).
Additionally, Garcia-Esquivel's due process claim fails because he has not met his burden to show prejudice: Garcia-Esquivel does not describe the substance of the documents he would have submitted, nor does he explain how they might have affected the outcome of his case, or how their absence otherwise prevented him from presenting his case. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) ("An alien bears the burden of proving the alleged violation [of due process] prejudiced his or her interests.").
2. The BIA properly affirmed the IJ's denial of asylum and withholding of removal, and its determination is supported by substantial evidence. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (explaining that we review the BIA's legal conclusions de novo and its factual findings for substantial evidence). Substantial evidence supports the agency's determination that Garcia-Esquivel failed to show the requisite nexus between any past or future harm and a protected ground. See 8 C.F.R. § 1208.13(b)(1); Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (discussing nexus requirements for asylum and withholding of removal). Garcia-Esquivel asserts that he was harmed, and fears future harm, on account of his imputed anti-gang political opinion and his religion. Garcia-Esquivel refused to join a gang in 2014 because of his religion but he did not encounter gang members again until 2016. Although he had subsequent encounters with gangs, he points to no evidence that the gangs targeted him based either on his religion or political opinion. See Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (stating that "the persecutor's motive is 'critical'").
The BIA also reasonably concluded that the proposed particular social group of "witnesses to smuggling" is not cognizable because it lacks social distinction. Garcia-Esquivel asserts that "the cartel against whom he testified" and United States "immigration authorities" have identified him as "a cooperating witness to smuggling." But the relevant inquiry is whether Guatemalans perceive "witnesses to smuggling" as a distinct group in Guatemalan society. See Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020) (explaining that social distinction can be assessed from, inter alia, "the perspective of the society in question as a whole" (internal quotation marks omitted)). Garcia-Esquivel points to no record evidence indicating that Guatemalans consider his proposed social group "witnesses to smuggling" as a distinct group within their society. See id.
The agency also determined the Garcia-Esquivel could reasonably relocate within Guatemala. We do not consider this ground for the agency's decision because neither Garcia-Esquivel nor the government address it. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party's opening brief are waived).
3. Garcia-Esquivel asserts the BIA erred in affirming the IJ's denial of withholding of removal because it "simply agreed with the IJ" who had improperly "conflat[ed] the nexus standards" for asylum and withholding. The BIA did not simply agree with the IJ but conducted its own analysis. See Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (explaining that when the "BIA conduct[s] its own review of the evidence and law rather than simply adopting the [IJ]'s decision . . . our review is limited to the BIA's decision, except to the extent the IJ's decision is expressly adopted" (internal quotation marks omitted)). The BIA applied the proper standard and found no nexus to a protected ground. See Barajas-Romero, 846 F.3d at 360.
4. Substantial evidence supports the BIA's determination that Garcia-Esquivel was not entitled to CAT relief. The record does not compel the conclusion that it is more likely than not that Garcia-Esquivel would suffer harm rising to the level of torture if he returned to Guatemala. See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir. 2019) (denying CAT relief because applicant failed to show "a greater risk [of torture] to him than any other Mexican national deported from the United States"). Nor is there evidence that the government or a public official would "acquiesce" in such torture. See Madrigal v. Holder, 716 F.3d 499, 509-10 (9th Cir. 2013). Garcia-Esquivel's contention that the denial of CAT relief was erroneous because it was based on the lack of documentary evidence, is meritless for the reasons explained above.
PETITION FOR REVIEW 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).