Jose Angel Hernandez-Sanchez v. MERRICK B. GARLAND, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANGEL HERNANDEZ-SANCHEZ,
Petitioner,
v.
MERRICK B. GARLAND, U.S. Attorney
General,
Respondent.
No. 21-1039
Agency No. A206-403-140
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2023**
Pasadena, California
Before: W. FLETCHER, LEE, and MENDOZA, Circuit Judges.
Petitioner Jose Angel Hernandez-Sanchez, a native and citizen of
Mexico, petitions for review of a Board of Immigration Appeals (“BIA”)
decision denying his motion to reopen removal proceedings. “We review the
BIA’s denial of a motion to reopen for an abuse of discretion.” Agonafer v.
Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). We have jurisdiction under 8
* 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
APR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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U.S.C. § 1252, and we deny the petition for review.
The BIA did not abuse its discretion in denying Hernandez-Sanchez’s
motion to reopen based on changed country conditions. To prevail on such a
motion, “[a] petitioner must (1) produce evidence that conditions have changed
in the country of removal; (2) demonstrate that the evidence is material; (3)
show that the evidence was not available and would not have been discovered
or presented at the previous hearings; and (4) ‘demonstrate that the new
evidence, when considered together with the evidence presented at the original
hearing, would establish prima facie eligibility for the relief sought.’” Id. at
1204 (quoting Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008)). “If [the
allegedly new information] was available or capable of being discovered
[during the original hearing], it cannot provide a basis for reopening.” Goel v.
Gonzales, 490 F.3d 735, 738 (9th Cir. 2007).
The BIA did not err in holding that the petitioner did not produce
evidence that country conditions have changed to warrant reopening. In any
event, Hernandez-Sanchez also failed to show the evidence he presented was
unavailable or undiscoverable at the time of his April 2019 hearing. With his
motion to reopen, Hernandez-Sanchez provided a 2020 notarized statement
from his uncle that two of Hernandez-Sanchez’s cousins had disappeared—one
in 2013 and the other in 2017—and that the uncle had observed “a lot of
insecurity and delinquency” in Los Zapotes, Michoacán. He did not argue
before the BIA, nor does he before this court, that he was unaware of his
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cousins’ disappearances before his hearing or provide a reason he did not
previously provide this information. Accordingly, the BIA did not abuse its
discretion in concluding that it was not new evidence. Id. at 738 (finding
evidence about events that allegedly occurred well before the IJ hearing did not
constitute new evidence without any explanation as to why the evidence was
previously unavailable).
Additionally, Hernandez-Sanchez has not established how his uncle’s
statement about the insecurity in Los Zapotes constitutes new evidence that was
unavailable or undiscoverable at the time of his hearing, or how it establishes a
change in country conditions. His uncle did not indicate whether the insecurity
he observed reflected a change since April 2019 or was the continuation of
ongoing violence. Therefore, the BIA did not abuse its discretion in concluding
this was not evidence of changed country conditions. Rodriguez v. Garland,
990 F.3d 1205, 1210 (9th Cir. 2021) (“General references to ‘continuing’ or
‘remaining problems’ is not evidence of a change in a country’s conditions.”).
Lastly, the BIA did not abuse its discretion in denying Hernandez-
Sanchez’s motion to reopen because he did not establish prima facie eligibility
for asylum. Hernandez-Sanchez failed to show the necessary nexus between his
fear of persecution and membership in a particular social group. See Madrigal
v. Holder, 716 F.3d 499, 503, 505 (9th Cir. 2013). He did not show how
general violence in Mexico and the disappearances of his cousins created a
likelihood he would be persecuted based on his membership in his family. See
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Arriaga-Barrientos v. U.S.I.N.S., 937 F.2d 411, 414 (“violence [against family
members must] create a pattern of persecution closely tied to the petitioner” to
establish a well-founded fear of persecution).
Accordingly, the BIA did not abuse its discretion in denying Hernandez-
Sanchez’s motion to reopen.
The temporary stay of removal remains in place until the mandate issues.
PETITION DENIED.
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