Merlin Candelaria Rodriguez Escobar v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MERLIN CANDELARIA RODRIGUEZ
ESCOBAR; FABIAN ISAIAS MARTINEZ
RODRIGUEZ; JESUS FRANCISCO
MARTINEZ GALLARDO,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72540
Agency Nos. A098-005-961
A208-195-635
A208-195-636
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2022**
Phoenix, Arizona
Before: BYBEE, OWENS, and COLLINS, Circuit Judges.
Petitioners Jesus Francisco Martinez Gallardo (“Martinez Gallardo”), his
wife Merlin Candelaria Rodriguez Escobar (“Rodriguez Escobar”), and their son
* 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).
FILED
NOV 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
Fabian Isaias Martinez Rodriguez (“Fabian”) petition for review of the Board of
Immigration Appeals’ (“BIA”) decision (1) dismissing their appeal of an
immigration judge’s (“IJ”) decision denying Martinez Gallardo’s application for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”); and (2) denying their motion to terminate proceedings.
Rodriguez Escobar and Fabian are derivative beneficiaries of Martinez Gallardo’s
asylum application. Martinez Gallardo and Fabian are natives and citizens of
Mexico, and Rodriguez Escobar is a native and citizen of Guatemala. We review
factual findings for substantial evidence, and these findings are “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.”
Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022) (citation omitted). As
the parties are familiar with the facts, we do not recount them here. We deny the
petition for review.
1. An asylum or withholding of removal applicant’s burden includes
showing persecution “on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Silva v. Garland, 993 F.3d 705, 719
(9th Cir. 2021) (citation omitted). Before the agency, Martinez Gallardo claimed
persecution on account of two grounds: (1) the particular social group of “nuclear
family: the husband of female respondent who attempted to protect his wife against

-- 2 of 5 --

3
sexual assault and as a result of his action he was harmed”; and (2) political
opinion based on his refusal to sell drugs and desire to be free from harm.
Petitioners do not raise the first ground in their opening brief, and therefore
they have waived it. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th
Cir. 2013) (holding that issues not specifically raised and argued in a party’s
opening brief are waived).
Regarding the second ground, substantial evidence supports the agency’s
determination that Martinez Gallardo failed to establish that his refusal to sell
drugs and desire to be free from harm constituted a “political opinion” under the
Immigration and Nationality Act. See, e.g., Ramos-Lopez v. Holder, 563 F.3d 855,
862 (9th Cir. 2009) (holding that substantial evidence supported the agency’s
determination that the petitioner’s refusal to join a gang did not constitute a
political opinion), abrogated on other grounds by Henriquez-Rivas v. Holder, 707
F.3d 1081 (9th Cir. 2013) (en banc); cf. Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010) (“An [applicant’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.”). Contrary to Petitioners’ contention, the IJ adequately
explained its decision that Martinez Gallardo did not establish a political opinion.
And the BIA properly rejected Petitioners’ argument that the IJ erred by failing to
consider Martinez Gallardo as a “whistleblower” because Martinez Gallardo did

-- 3 of 5 --

4
not present a “whistleblowing” component to his political-opinion claim before the
IJ.
2. For the CAT claim, the agency found that Martinez Gallardo had been
tortured on at least one occasion with the acquiescence of the local police, but that,
under the totality of the circumstances, Martinez Gallardo was not likely to face
future torture, due to his ability to relocate within Mexico and thereby avoid his
past abusers. See 8 C.F.R. § 1208.16(c)(3)(ii) (stating that the CAT analysis
includes considering “[e]vidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured”). The record does
not compel a different conclusion. See Tzompantzi-Salazar v. Garland, 32 F.4th
696, 704-05 (9th Cir. 2022) (holding that substantial evidence supported the denial
of CAT relief based on the possibility that the petitioner could safely relocate in
Mexico).
3. Finally, Petitioners’ argument that the immigration court lacked
jurisdiction because the Notices to Appear failed to specify the date, time, and
location of their initial removal hearings, even though later notices provided that
information, is foreclosed by this court’s recent en banc decision in United States
v. Bastide-Hernandez, 39 F.4th 1187, 1192-93, 1193 n.9 (9th Cir. 2022) (en banc)
(holding that a defective Notice to Appear does not deprive the immigration court
of subject matter jurisdiction).

-- 4 of 5 --

5
PETTION FOR REVIEW DENIED.

-- 5 of 5 --