Opinion
17-71360
11-09-2022
FRANCISCO FLORENTINO MARTINEZ- GOMEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 7, 2022 [**]Pasadena, California.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A088-170-162.
Before: PARKER,[***] KOH, and SUNG, Circuit Judges.
MEMORANDUM [*]
Petitioner Francisco Florentino Martinez-Gomez ("Martinez-Gomez"), a native and citizen of Mexico, petitions this court for review of a Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") denial of Martinez-Gomez's application for withholding of removal and relief under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review de novo questions related to jurisdiction. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1245 (9th Cir. 2008). We review an IJ's decision to deny a request for a continuance for abuse of discretion. Cui v. Mukasey, 538 F.3d 1289, 1290 (9th Cir. 2008). We review factual findings for substantial evidence. Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir. 2021).
1. The defects in Martinez-Gomez's Notice to Appear ("NTA") (failure to include the location and time of his removal hearing) did not deprive the immigration court of subject matter jurisdiction, and thus, Martinez-Gomez's removal proceedings are not void. United States v. Bastide-Hernandez, 39 F.4th 1187, 1192-93 (9th Cir. 2022) (en banc).
2. The IJ did not abuse her discretion by denying Martinez-Gomez's motion for a continuance to reapply for prosecutorial discretion. We determine whether denial of a continuance in an immigration proceeding constitutes an abuse of discretion on a case-by-case basis. Cui, 538 F.3d at 1292 (identifying relevant factors). Here, Martinez-Gomez received one prior continuance and had significant time to identify or locate proof that he is not a gang associate and thus not a priority for removal. His request for a second continuance came eight years after U.S. Customs and Border Protection first identified him as a gang associate, more than two years after the start of his immigration proceedings, and more than one year after his first request for prosecutorial discretion was denied. He did not specifically identify any evidence he would obtain if the continuance were granted. Under these circumstances, the IJ's denial of the motion did not constitute an abuse of discretion.
3. Substantial evidence supports the denial of Martinez-Gomez's claim for withholding of removal. Martinez-Gomez's fear of persecution flows from three unrelated historical incidents and general pressure from the Triqui Unification and Fight Movement ("MULT") to join its movement. Even assuming that Martinez-Gomez is a member of a cognizable social group, and that he can show a nexus between this social group and his fear of persecution, the record does not compel the finding that he has experienced past persecution or that he would be more likely than not to experience future persecution. See Molina-Estrada v. INS, 293 F.3d 1089, 1093-94 (9th Cir. 2002) (explaining that, absent a showing of past persecution, petitioner must present "credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution" (quoting Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999))).
4. Substantial evidence supports the agency's denial of Martinez-Gomez's CAT claim. His generalized evidence of violence and crime in Mexico is not particular to him and is insufficient to support a claim for CAT relief. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).
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).
[***] The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.