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Hernandez v. Garland

United States Court of Appeals, Ninth Circuit
Oct 12, 2022
No. 21-70846 (9th Cir. Oct. 12, 2022)

Opinion

21-70846

10-12-2022

LUIS ALBERTO MONTES HERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 6, 2022 [**] Seattle, Washington

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-154-884

Before: MURGUIA, Chief Judge, and W. FLETCHER and BENNETT, Circuit Judges.

MEMORANDUM [*]

Luis Alberto Montes Hernandez seeks review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an Immigration Judge's ("IJ") denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We dismiss in part and deny in part.

1. The IJ denied asylum and withholding on the ground that neither of Montes Hernandez's proposed social groups-"family which has resisted cooperation with the cartel in Mexico" and "those who are raised in the United States and would be identified by others as being Americanized in Mexico"-was cognizable. On appeal before the BIA, Montes Hernandez argued in part that the IJ erred because Montes Hernandez established that he fears returning to Mexico "on account of his particular social group, i.e. his family's business and landownership in Guerrero, Mexico, and his familial ties to that family."

In affirming the IJ's decision, the BIA determined that this was a new proposed group that Montes Hernandez was raising for the first time on appeal. The BIA concluded that Montes Hernandez waived the argument about this new proposed group, and it declined to address whether the group was cognizable. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per curiam) (concluding that the BIA "d[oes] not err when it decline[s] to consider [a petitioner's] proposed particular social groups that were raised for the first time on appeal"). The BIA then affirmed the IJ's determination that the proposed social groups properly before it were not cognizable.

In his opening brief before this Court, Montes Hernandez contends that the IJ and BIA erred in failing to consider his proposed particular social group. But he bases his argument only on his membership in the unexhausted proposed group: "his family's business and landownership in Guerrero, Mexico and his familial ties to that family." When the BIA declines to consider a proposed group raised for the first time on appeal, this Court lacks jurisdiction to consider arguments pertaining to that group. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (explaining that this Court lacks subject-matter jurisdiction over unexhausted claims); see also Alanniz v. Barr, 924 F.3d 1061, 1069 (9th Cir. 2019) ("[N]either the BIA nor the Ninth Circuit is authorized to undertake the initial factfinding necessary to determine the viability of [a proposed particular social] group.").

On appeal before this Court, Montes Hernandez does not specifically address the two proposed groups that were properly before the BIA. But even if Montes Hernandez intended to challenge the BIA's denial based on the two groups that he raised to the IJ, he never provides any "specific[] and distinct[]" basis for appealing the BIA's determination that those groups lack particularity and social distinction. Cf. Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (explaining that we review "only issues which are argued specifically and distinctly in a party's opening brief" and noting that the "bare assertion of an issue does not preserve a claim") (citations omitted). As a result, Montes Hernandez waived any challenge to the BIA's dispositive determination that his proposed groups- "member of a family which has resisted cooperation with the cartel in Mexico" and "those who are raised in the United States and would be identified by others as being Americanized in Mexico"-are not cognizable.

We lack jurisdiction to consider Montes Hernandez's unexhausted arguments and dismiss the petition as to Montes Hernandez's asylum and withholding claims. See Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 n.6 (9th Cir. 2004) (noting that an immigration petition must be dismissed where this Court lacks jurisdiction).

2. Substantial evidence supports the BIA's denial of CAT relief and its determination that Montes Hernandez has not established that he would be more likely than not tortured if forced to return to Mexico. In support of his CAT claim, Montes Hernandez identifies threats made against his cousin. However, he fails to present evidence of any particularized threat that he will be targeted for torture upon returning to Mexico. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (holding that generalized evidence of violence and crime in Mexico does not warrant CAT protection); Lopez v. Sessions, 901 F.3d 1071, 1078 (9th Cir. 2018) (holding that a generalized threat of future harm "does not provide a sufficient basis to conclude that any harm [to petitioner] would rise to the level of torture"). Furthermore, Montes Hernandez's assertion that he fled Mexico "to avoid the death threats and harassment" is unsupported by the record, which does not include testimony or evidence that Montes Hernandez or his family were threatened or harassed before he departed Mexico. We therefore deny Montes Hernandez's petition as to his CAT claim.

PETITION DISMISSED IN PART AND DENIED IN PART.

[*] 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).


Summaries of

Hernandez v. Garland

United States Court of Appeals, Ninth Circuit
Oct 12, 2022
No. 21-70846 (9th Cir. Oct. 12, 2022)
Case details for

Hernandez v. Garland

Case Details

Full title:LUIS ALBERTO MONTES HERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 12, 2022

Citations

No. 21-70846 (9th Cir. Oct. 12, 2022)