Opinion
20-73437
10-18-2022
CARLOS SEBASTIAN-FRANCISCO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 4, 2022 [**] Portland, Oregon
On Petition for Review of an Order of an Immigration Judge Agency No. A088-654-921
Before: OWENS and MILLER, Circuit Judges, and EZRA, [***] District Judge.
MEMORANDUM [*]
Carlos Sebastian-Francisco, a native and citizen of Guatemala, seeks review of an immigration judge's decision affirming a negative reasonable fear determination. We have jurisdiction under 8 U.S.C. § 1252. See 8 C.F.R. § 208.31(g)(1). We deny the petition in part and dismiss it in part.
We review factual findings related to reasonable fear determinations for substantial evidence, upholding the immigration judge's conclusion unless "any reasonable adjudicator would be compelled to conclude to the contrary." Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016) (quoting Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)). "We review de novo due process challenges to reasonable fear proceedings." Orozco-Lopez v. Garland, 11 F.4th 764, 774 (9th Cir. 2021) (quoting Zuniga v. Barr, 946 F.3d 464, 466 (9th Cir. 2019) (per curiam)). We review de novo "whether [an] IJ's denial of a continuance violated [a petitioner's] statutory right to counsel." Id. (alteration in original) (quoting Montes-Lopez v. Holder, 694 F.3d 1085, 1088 (9th Cir. 2012)).
1. Substantial evidence supports the agency's determination that Sebastian-Francisco did not show "a reasonable possibility that he . . . would be persecuted on account of his . . . race, religion, nationality, membership in a particular social group or political opinion." 8 C.F.R. §§ 208.31(c), 1208.31(c). Sebastian-Francisco testified that he did not believe he would be harmed in Guatemala because he was indigenous, because he spoke an indigenous language, because he was Catholic, or because of his membership in any other group. Although he reasonably fears the Mara 18 gang after it kidnapped his wife and threatened to kill his family, substantial evidence supports the agency's determination that the reason for Mara 18's actions was financial gain, not a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) ("[D]esire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground."). Substantial evidence also supports the immigration judge's conclusion that Sebastian-Francisco could avoid future harm by reasonable relocation. See Hussain v. Rosen, 985 F.3d 634, 648-49 (9th Cir. 2021). Sebastian-Francisco's sister and mother live in a different city in Guatemala, and he testified that he believed he could be safe from Mara 18 there.
2. Substantial evidence supports the immigration judge's conclusion that Sebastian-Francisco did not show "a reasonable possibility that he . . . would be tortured in the country of removal," C.F.R. §§ 208.31(c), 1208.31(c), "with the consent or acquiescence of a public official," Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Sebastian-Francisco did not establish that public officials had connections with past torture by Mara 18, or that public officials would acquiesce to future torture by Mara 18. Sebastian-Francisco testified about police corruption and an unsolved murder from more than a decade ago, with no evidence about whether that corruption continued or whether those events were connected to Mara 18. See Andrade-Garcia, 828 F.3d at 836 ("[A] general ineffectiveness on the government's part to investigate and prevent crime will not suffice to show acquiescence.").
3. Sebastian-Francisco's due process rights were not violated. His claims that the asylum officer violated his due process rights were not exhausted, so we do not have jurisdiction to hear them. Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002).
The immigration judge's failure to explain that Sebastian-Francisco could present evidence did not violate due process. The immigration judge was sitting as an appellate tribunal, meaning that she had no obligation to hear new evidence. See Alvarado-Herrera v. Garland, 993 F.3d 1187, 1195 (9th Cir. 2021). In any event, Sebastian-Francisco has not demonstrated prejudice. See Tamayo-Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013). Sebastian-Francisco argues that his wife could testify about comments Mara 18 may have made to her while she was captive, which might show that Sebastian-Francisco's family was targeted due to a protected ground. That vague speculation contradicts Sebastian-Francisco's previous testimony, in which he said that his wife already explained that the attacks on their family were motivated by financial gain.
Sebastian-Francisco argues that the immigration judge violated due process by failing to explain the concepts of protected grounds and government acquiescence. But the record shows that a document outlining the concepts of protected grounds and government acquiescence was read to Sebastian-Francisco in his native Acateco on August 10, 2020, so he was on notice of the legal standards. In any event, Sebastian-Francisco's only allegation of prejudice is that "the outcome of the proceeding may have been different had he been informed of the legal requirements for demonstrating a reasonable fear of persecution or torture." That assertion is too conclusory to demonstrate a reasonable likelihood that the outcome would have been different. See Tamayo-Tamayo, 725 F.3d at 954.
4. Sebastian-Francisco's right to counsel was not violated. In reasonable fear proceedings before an immigration judge, absent exceptional circumstances, an applicant's right to counsel is not violated even if he is given less than ten days to obtain counsel. See Orozco-Lopez, 11 F.4th at 778-79. The record shows Sebastian-Francisco had more than two months' notice of his right to counsel. At Sebastian-Francisco's interview on August 7, 2020, an asylum officer asked if he understood the credible fear process, and he responded, "[T]hey did tell me I had a right to a lawyer." The immigration judge also notified Sebastian-Francisco of his right to counsel on October 1, 2020, and granted a three-week continuance to obtain counsel. In light of that notice, the COVID-19 pandemic and Sebastian-Francisco's language barriers do not constitute exceptional circumstances warranting an even longer continuance to obtain counsel.
The motion for a stay of removal (Dkt. No. 1) is denied. The temporary stay of removal is lifted.
PETITION DENIED in part and DISMISSED 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).
[***] The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.