From Casetext: Smarter Legal Research

Hernandez-Aguilar v. Garland

United States Court of Appeals, Ninth Circuit
Oct 24, 2022
No. 17-71198 (9th Cir. Oct. 24, 2022)

Opinion

17-71198

10-24-2022

ADRIAN HERNANDEZ-AGUILAR, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 20, 2022 Pasadena, California

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. A076-710-309

Before: O'SCANNLAIN, WATFORD, and HURWITZ, Circuit Judges.

MEMORANDUM

Adrian Hernandez-Aguilar, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals ("BIA") dismissing his appeal from the Immigration Judge's ("IJ") decision (1) to deny his motion for a continuance, (2) to deny withholding of removal under the Immigration and

Nationality Act ("INA"), and (3) to deny protection under the Convention Against Torture ("CAT"). As the facts are known to the parties, we repeat them only as necessary to explain our decision. We deny the petition.

I

The agency did not abuse its discretion in denying Hernandez-Aguilar the requested continuance. A continuance may be granted for "good cause shown," 8 C.F.R. § 1003.29, and "[t]he decision to grant or deny the continuance is within the sound discretion of the [immigration judge] and will not be overturned except on a showing of clear abuse," Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015) (cleaned up); see Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008). Hernandez-Aguilar argues that he was entitled to a continuance because he had "imminent relief" available to him "through his United States citizen fiance and 21 and over child." Blue Br. 7-8.

But it was not an abuse of discretion to deny the requested continuance. Hernandez-Aguilar failed to provide any material evidence or arguments supporting the propositions that his fiancé is a United States citizen, or that his child is over the age of 21 and has filed a timely visa petition on his behalf. He has not demonstrated that he was eligible for and entitled to “imminent relief” justifying a continuance of these “withholding-only” proceedings. See generally, e.g., Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011); Zafar v. U.S. Atty. Gen., 461 F.3d 1357, 1363-64 (11th Cir. 2006); see also, e.g., A.R. 3-4 (citing, inter alia, 8 C.F.R. § 12081.31(e)). II

The agency did not err in denying Hernandez-Aguilar's application for withholding of removal under the INA. As relevant here, Hernandez-Aguilar principally relies on several alleged past harms to seek relief, including (a) threats and minor beatings by his classmates and middle-school principal, (b) two stops by police in which he had to pay money, (c) mistreatment of his brothers by cartels (one brother was robbed and beaten, and another was threatened), and (d) a phoned threat from his brother after Hernandez-Aguilar offered to assist their ill father. See, e.g., Blue Br. 4-5, 8-16; see also A.R. 3.

But the agency did not err in denying relief-and the record does not "compel[]" the conclusion that it so erred. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Even assuming that the relied-upon harms rose to the level of "persecution," there has been no showing that they were "on account of" a protected ground, Sangha v. I.N.S., 103 F.3d 1482, 1490 (9th Cir. 1997)-indeed, Hernandez-Aguilar does not meaningfully engage the agency's findings on this score. See Red Br. 22-23 (citing, inter alia, A.R. 4-5). Hernandez-Aguilar has failed to show past persecution or a clear probability of future persecution "on account of" a protected ground-and the record does not compel the conclusion that the agency erred.

There was also no error in denying CAT protection. The past harms relied upon by Hernandez-Aguilar do not rise to the level of "torture." Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) ("Torture is more severe than persecution") (cleaned up). And, despite offering evidence of generalized country conditions (which have little to say about his particular circumstances and are insufficient to carry his burden here), see, e.g., Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010), Hernandez-Aguilar provides no material evidence showing that it is "more likely than not" that he would be "tortured" with the "consent or acquiescence of a public official or other person acting in an official capacity" if he were removed to Mexico, Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (cleaned up). Accordingly, Hernandez-Aguilar has failed to make the showing necessary for CAT protection-and the record does not compel the conclusion that the agency erred.

PETITION FOR REVIEW DENIED.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).


Summaries of

Hernandez-Aguilar v. Garland

United States Court of Appeals, Ninth Circuit
Oct 24, 2022
No. 17-71198 (9th Cir. Oct. 24, 2022)
Case details for

Hernandez-Aguilar v. Garland

Case Details

Full title:ADRIAN HERNANDEZ-AGUILAR, Petitioner, v. MERRICK B. GARLAND, Attorney…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 24, 2022

Citations

No. 17-71198 (9th Cir. Oct. 24, 2022)