Jose Manuel Hernandez-Mena v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL HERNANDEZ-MENA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-360
Agency No. A205-022-677
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 09, 2023**
San Francisco, California
Before: FRIEDLAND and NELSON, Circuit Judges, and KATZMANN,***
International Trade Judge.
Jose Manuel Hernandez-Mena, a native and citizen of Mexico, petitions
for review of a decision of the Board of Immigration Appeals (“BIA”)
upholding the Immigration Judge’s (“IJ”) denial of his claims for withholding
* 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 Gary S. Katzmann, Judge for the United States
Court of International Trade, sitting by designation.
FILED
MAR 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of removal, relief under the Convention Against Torture (“CAT”), and
cancellation of removal.1 We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petition.
We review the agency’s factual findings for substantial evidence. See
Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). Under that standard, the
agency’s findings of fact are conclusive unless “any reasonable adjudicator
would be compelled to conclude to the contrary.” Nasrallah v. Barr, 140 S. Ct.
1683, 1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)).
1. Substantial evidence supports the agency’s determination that
Hernandez-Mena failed to show the requisite nexus between any past or feared
future harm and a protected ground. See 8 U.S.C. § 1231(b)(3)(A). As the IJ
recognized, Hernandez-Mena testified that he had never been harmed or
threatened in Mexico and that he did not fear that he would be, let alone that he
would be harmed based on a protected ground. Hernandez-Mena argued to the
BIA and now argues to our court that he fears violence from gangs, but he
points to no evidence that any violence he might face would be based on a
protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(“[D]esire to be free from . . . random violence by gang members bears no
nexus to a protected ground.”); cf. Alvarado-Herrera v. Garland, 993 F.3d
1187, 1196 (9th Cir. 2021) (holding that substantial evidence supported the IJ’s
1 Hernandez-Mena concedes that his asylum claim was time-barred.

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no-nexus finding where petitioner “specifically denied fearing harm based” on
his asserted protected ground). We thus deny the petition as to Hernandez-
Mena’s application for withholding of removal.
2. We also deny the petition as to Hernandez-Mena’s application for
relief under the CAT. To qualify for relief under the CAT, Hernandez-Mena
must establish that it is more likely than not that he would be tortured if
returned to Mexico. Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir.
2020). Hernandez-Mena’s generalized evidence of violence and crime in
Mexico is not sufficient to meet this standard. See Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010).
3. Hernandez-Mena also argues that his due process rights were violated
because the IJ denied him a full and fair hearing by declining to consider his
evidence that his removal would impose financial hardship on his children
sufficient to satisfy the “exceptional and extremely unusual hardship” standard
for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(D). But the IJ stated that
he would deny Hernandez-Mena’s request for “discretionary reasons” relating
to his criminal record, even if Hernandez-Mena had met the standard for relief.
Because this discretionary determination itself foreclosed relief, Hernandez-
Mena’s due process challenge fails for lack of prejudice—any procedural error
could not have harmed him because he would have been denied cancellation of
removal regardless. See Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th

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Cir. 2018).2
PETITION DENIED.
2 To the extent that Hernandez-Mena challenges this discretionary
component of the IJ’s decision, we do not have jurisdiction to review it. See
§ 1252(a)(2)(B)(ii); Singh v. Rosen, 984 F.3d 1142, 1149 (6th Cir. 2021)
(“[Section] 1252(a)(2)(B)(ii) . . . precludes . . . a challenge to the Board’s final
decision that an immigrant is not entitled to cancellation of removal as a
discretionary matter even if the immigrant meets all four eligibility factors.”).
Jurisdiction is not restored under the Real ID Act because Hernandez-Mena
does not raise a constitutional or legal challenge to this aspect of the agency’s
determination. See De La Rosa-Rodriguez v. Garland, 49 F.4th 1282, 1287 (9th
Cir. 2022).

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