Opinion
21-70612
11-03-2022
SANTIAGO RUIZ-REYES, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted April 15, 2022 Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-297-874
Before: HAWKINS and FORREST, Circuit Judges, and RESTANI, [**] Judge. Concurrence by Judge FORREST
MEMORANDUM [*]
Petitioner Santiago Ruiz-Reyes, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming an Immigration Judge's ("IJ") denial of asylum, withholding of removal, cancellation of removal, and relief under the Convention Against Torture ("CAT"). We deny the petition.
In his petition to this court, Ruiz-Reyes does not challenge the BIA's denial of CAT protection and he did not properly challenge the BIA's denial of his petition for withholding of removal in the opening brief. Thus, we deem those issues waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (holding that an issue not raised in a brief is deemed waived); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) ("Issues raised in a brief that are not supported by argument are deemed abandoned.").
I. Cancellation of Removal
We assume statutory jurisdiction arguendo here because the jurisdictional issue is complex, but the claim asserted clearly lacks merit. See e.g., De La Rosa-Rodriguez v. Garland, 49 F.4th 1282, 1291 (9th Cir. 2022); Bakalian v. Cent. Bank of Republic of Turk., 932 F.3d 1229, 1236 (9th Cir. 2019).
Ruiz-Reyes argues that the BIA erred in denying cancellation of removal because it would impose financial and emotional hardship on his family, and he would face danger when returned to Mexico. The "exceptional and extremely unusual hardship" standard is only concerned with hardship to relatives. See 8 U.S.C. § 1229b(b)(1)(D) ("Attorney General may cancel removal . . . [where] removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child ...."). The asserted hardship to his family does not warrant cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D). See Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1013 (9th Cir. 2005) (reflecting that emotional hardship caused by severing family ties is an unfortunate common result of removal of a nonresident parent); In re Monreal-Aguinaga, 23 I. &N. Dec. 56, 63-64 (BIA 2001) (explaining that a lower standard of living will generally be insufficient to establish the requisite level of hardship). Therefore, his hardship claim lacks merit.
II. Asylum
An asylum applicant, such as Ruiz-Reyes, who has not proven past persecution, may still qualify for asylum based on a well-founded fear of future persecution. See Sharma v. Garland, 9 F.4th 1052, 1065 (9th Cir. 2021). The BIA upheld the IJ's finding that Ruiz-Reyes failed to show an objectively reasonable fear of persecution based on any of his asserted protected grounds. Substantial evidence supports this determination.
First, the BIA did not err in concluding that Ruiz-Reyes failed to establish a reasonable possibility of persecution on account of his indigenous Purepecha status. Ruiz-Reyes testified that Purepechas are looked down upon and excluded from society, but he was never physically harmed because of his Purepecha identity. We affirm the BIA's finding that the risk of future discrimination Ruiz-Reyes alleges does not rise to the level of persecution. See Sharma, 9 F.4th at 1060 ("Persecution . . . is an extreme concept that means something considerably more than discrimination or harassment." (internal quotation marks and citation omitted)); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).
Second, the BIA did not err in concluding that Ruiz-Reyes has not established a reasonable possibility of persecution on account of his political opinion that "extortion is wrong and the Mexican cartels are bad." A general opposition to criminal activity, without more, is insufficient to demonstrate a reasonable possibility of persecution on account of a political opinion. See Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). Ruiz-Reyes failed to provide any evidence that the cartels knew of this opinion or that they would target him specifically because of it. See Rodriguez Tornes v. Garland, 993 F.3d 743, 752 (9th Cir. 2021). Instead, any such harm likely would be the result of random criminal violence. See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir. 2019).
Finally, the BIA did not err in concluding that Ruiz-Reyes has not shown that he is likely to face persecution based on his familial membership. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) (rejecting a petitioner's claim for asylum where the record did not contain evidence of a nexus between his alleged persecution and membership in his family). Ruiz-Reyes testified that he fears returning to Mexico based on the violence and extortion experienced by his extended family members. He presented no evidence, however, to demonstrate that he would be targeted by criminals in Mexico because of his family ties. Rather, he indicated that he would be targeted because he is returning from the United States and would be perceived to be wealthy. "An alien's desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground." Flores-Vega, 932 F.3d at 887 (quoting Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)); see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (per curiam) (holding that "returning Mexicans from the United States" was not a cognizable social group for purposes of establishing a protected ground).
PETITION FOR REVIEW DENIED.
Forrest, J., concurring in the judgment:
I join the majority because this court's recent decision in De La Rosa-Rodriguez v. Garland, 49 F.4th 1282 (9th Cir. 2022), binds our hands in deciding whether we have jurisdiction to review the Board of Immigration Appeals' (BIA) denial of Petitioner Santiago Ruiz-Reyes' claim for cancellation of removal based on its finding that his family will not face an "exceptional and extremely unusual hardship" if he is removed. 8 U.S.C. § 1229b(b)(1)(D). I write separately because De La Rosa-Rodriquez was wrongly decided where the three-judge panel improperly failed to apply this court's precedent.
The De La Rosa-Rodriguez panel set aside our prior precedent establishing that we lack jurisdiction to review the BIA's conclusion about whether an applicant has demonstrated hardship, based on the Supreme Court's decisions in Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062 (2020), and Patel v. Garland, 142 S.Ct. 1614 (2022). For the reasons explained below, this was incorrect. Nothing in these two decisions undermined our prior holding that whether an "exceptional and extremely unusual hardship" exists is a subjective inquiry falling outside of our jurisdiction under 8 U.S.C. § 1252(a)(2). See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009).
I begin with the text of the governing statute. In 8 U.S.C. § 1252(a)(2)(B)(i), Congress stripped courts of jurisdiction to review "any judgment regarding the granting of relief under section . . . 1229b . . . of this title." The relief provided in 8 U.S.C. § 1229b is cancellation of removal. In section 1252(a)(2)(D)-the Limited Review Provision-Congress restored jurisdiction over "constitutional claims or questions of law raised upon a petition for review ...." 8 U.S.C. § 1252(a)(2)(D). Well before the Supreme Court's decision in Guerrero-Lasprilla, which held that the phrase "questions of law" in the Limited Review Provision includes mixed questions of law and fact, 140 S.Ct. at 1067, we had already reached the same conclusion. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam) ("[O]ur jurisdiction over 'questions of law' . . . includes not only 'pure' issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact."). But we also held that the Limited Review Provision "does not restore jurisdiction over discretionary determinations." Id. at 654 (emphasis added). The Supreme Court has not undermined that holding.
Our statement in Ramadan that we lack jurisdiction over "discretionary determinations" was a reference to the agency's exercise of judgment where relief is dependent on both a determination of statutory eligibility and an exercise of discretion. Id. at 654-56. As the panel in De La Rosa-Rodriguez recognized, the Supreme Court in Patel made clear that the determination of whether jurisdiction exists does not hinge on whether the challenged decision was "discretionary." De La Rosa-Rodriguez, 49 F.4th at 1287 ("Patel makes clear that the jurisdiction-stripping provision in 8 U.S.C. § 1252(a)(2)(B)(i) applies to the BIA's decision to deny cancellation of removal to De La Rosa, whether or not characterized as discretionary."). Instead, our jurisdiction hinges on whether the challenge involves a "constitutional claim[] or question[] of law." See Patel, 142 S.Ct. at 1623; see also 8 U.S.C. § 1252(a)(2)(D). An issue requiring subjective judgment, or a value-laden determination, is generally not a "question of law." Mendez-Castro, 552 F.3d at 980; see also United States v. Jackson, 577 F.3d 1032, 1033 (9th Cir. 2009) (explaining a discretionary decision not to reduce a defendant's sentence is not "a question of law"). Patel does not, therefore, undermine our holding in Ramadan that we cannot review such discretionary judgments. Instead, Patel interprets § 1252(a)(2)(B)(i)'s jurisdiction stripping broadly to cover anything that is not a question of law, regardless of whether the ultimate decision at issue is purely discretionary or not. See Patel, 142 S.Ct. at 1622-23 (holding "§ 1252(a)(2)(B)(i) encompasses not just 'the granting of relief' but also any judgment relating to the granting of relief," subject to the Limited Review Provision's grant of jurisdiction to review constitutional claims and "questions of law" (emphasis in original)).
That brings us to the heart of the matter-whether we have jurisdiction to review the BIA's decision that the applicant's family is not facing an "exceptional and extremely unusual hardship" where that challenge is presented by the applicant as a mixed question. That is, whether we may consider if the BIA erred in concluding that the facts presented do not constitute a qualifying hardship. Before Guerrero-Lasprilla and Patel, the answer in this circuit was plainly no. In Mendez-Castro we explained: "The 'exceptional and extremely unusual hardship' standard 'is almost necessarily a subjective question' that depends on the 'identity' and the 'value judgment of the person or entity examining the issue.'" 552 F.3d at 980 (quoting Romero-Torres v. Ashcroft, 327 F.3d 887, 890-91 (9th Cir. 2003)). Thus, we repeatedly held that "we lack jurisdiction to review whether an alien has established exceptional and extremely unusual hardship." Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir. 2003). Of course, there may be "questions of law" involved in exceptional-hardship determinations. In Ramirez-Perez we recognized that "whether the BIA's interpretation of the hardship standard violates due process" is a legal question that we can review. Id. We have also exercised jurisdiction over a due process challenge asserting that the BIA failed to consider all relevant evidence related to hardship. See Aguilar-Osorio v. Garland, 991 F.3d 997, 999 (9th Cir. 2021) (per curiam). And in Mendez-Castro we held that whether the agency "failed to apply a controlling" legal standard is reviewable. 552 F.3d at 979. But the question of whether the facts rise to the level of an "exceptional and extremely unusual hardship" is a matter of judgment, not law.
Our conclusion in Mendez-Castro is consistent with the agency's interpretation of the undefined statutory term "exceptional and extremely unusual hardship" as inherently involving "an element of subjectivity" where "reasonable people can agree that the meaning of these terms is 'clear,' but come to quite different conclusions as to their application in various factual situations." In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (BIA 2001).
There may be other issues in this context that present legal or constitutional issues. For example, whether "the BIA failed to give [a petitioner] a statutorily mandated presumption of credibility" or whether "the BIA engaged in impermissible fact-finding." Hernandez-Velazco v. Garland, 846 Fed.Appx. 503, 506 (9th Cir. 2021) (unpublished). These issues, unlike the exceptional-hardship determination itself, are questions of law because they do not depend on value-laden judgments.
Consistent with the current Supreme Court framework, the challenges to exceptional-hardship determinations just described where we have exercised jurisdiction are properly characterized as presenting "questions of law." But the Supreme Court's recent decisions do not disturb our prior precedent that whether an "exceptional and extremely unusual hardship" exists under a given set of facts is nonreviewable because it is a "subjective" and value-laden inquiry. Id. at 980-81 ("Because . . . we have held that the 'exceptional and extremely unusual hardship' standard is subjective . . . we must conclude that we lack jurisdiction to review an IJ's application of such standard to the facts of a case, be they disputed or otherwise." (emphasis added)). It is important to note that we reached this conclusion in the context of our precedent predating Guerrero-Lasprilla holding that mixed questions are reviewable as questions of law. See Ramadan, 479 F.3d at 648, 654-56; see also Mendez-Castro, 552 F.3d at 980-81. We simply did not deem this to be a mixed question that triggers the statutory grant of limited review for "questions of law." See Mendez-Castro, 552 F.3d at 980-81.
The three-judge panel in De La Rosa-Rodriguez recognized that nothing in the Supreme Court's recent decisions directly undermines this holding. 49 F.4th at 1290. Neither Guerrero-Lasprilla nor Patel addressed the exceptional-hardship determination or whether a mixed question exists where the standard to be applied to the facts of the case is itself subjective or discretionary. Guerrero-Lasprilla recognized as a mixed question whether the petitioners in that case were entitled to equitable tolling of the time limit for filing a motion to reopen, which depends on demonstrating due diligence. 140 S.Ct. at 1067-68. Below, the Fifth Circuit had denied the petitions for review, characterizing the issue as "factual." Id. at 1068. The due diligence standard is patently different in character from the determination of whether someone has an exceptional and extremely unusual hardship. Compare Ghahremani v. Gonzales, 498 F.3d 993, 998-99 (9th Cir. 2007) (finding that where the facts are undisputed, whether an applicant demonstrated due diligence for equitable tolling is a reviewable mixed question of law and fact), with Mendez-Castro, 552 F.3d at 980 (explaining exceptional-hardship determinations are "valueladen" and therefore do not involve objective application of undisputed facts to a legal standard). Therefore, while one might argue that there is "some tension" between Guerrero-Lasprilla and our prior precedent concluding that the exceptional-and-extremely-unusual-hardship determination is based on a subjective standard, our prior precedent is not "clearly inconsistent" with the Supreme Court's intervening decisions. See Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012). And without a clear conflict, the De La Rosa-Rodriguez panel erred by failing to apply our prior precedent and instead announcing that we are not taking a side in the emerging circuit split on this question. 49 F.4th at 1291. We already took a side; we held repeatedly that whether a set of facts constitutes an "exceptional and extremely unusual hardship" is subjective and not subject to review as a question of law or a mixed question. Absent the en banc court adopting a different approach, the De La Rosa-Rodriguez panel was obligated to follow this precedent instead of announcing that this is an unresolved question in this circuit.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.