United States v. Kenneth Friend

United States Court of Appeals
For the Eighth Circuit
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No. 20-2526
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Israel Ely Ortiz-Matias
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 11, 2021
Filed: March 16, 2021
[Unpublished]
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Before SHEPHERD, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
Guatemalan citizen Israel Ely Ortiz-Matias petitions for review of an order of
the Board of Immigration Appeals (BIA), which dismissed his appeal from the
1Merrick B. Garland is serving as Attorney General of the United States, and
is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).

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decision of an immigration judge denying him asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
Upon careful consideration, we conclude that Ortiz-Matias’s challenge to the
agency’s jurisdiction over his removal proceedings is not properly before this court,
see Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (if petitioner fails to raise
particular issue when he appeals to BIA, he has not exhausted administrative
remedies); and in any event, it is without merit, Ali v. Barr, 924 F.3d 985-86 (8th Cir.
2019) (jurisdiction over removal proceedings vests when Notice to Appear (NTA) is
filed with immigration court; under 8 C.F.R. § 1003.18(b), NTA must contain time,
place, and date information for initial removal hearing only “where practicable”). We
also conclude that substantial evidence supports the agency’s determination that
Ortiz-Matias was not entitled to asylum, because he did not establish past persecution
or a well-founded fear of future persecution on account of a protected ground. See
De Castro-Gutierrez v. Holder, 713 F.3d 375, 379 (8th Cir. 2013) (standard of
review); Litvinov v. Holder, 605 F.3d 548, 553 (8th Cir. 2010) (asylum eligibility
requirements; if asylum applicants do not establish past persecution, they must show
fear of future persecution is both subjectively genuine and objectively reasonable);
see also Cano v. Barr, 956 F.3d 1034, 1039 (8th Cir. 2020) (persecution “involves the
infliction or credible threat of death, torture, or injury to one’s person or freedom, on
account of a protected characteristic”; it is “an extreme concept that excludes
low-level intimidation and harassment”) (citations and alteration omitted).
Substantial evidence also supports the agency’s conclusion that Ortiz-Matias was not
eligible for withholding of removal relief and CAT protection. See Martin Martin v.
Barr, 916 F.3d 1141, 1145 (8th Cir. 2019) (under the CAT, noncitizen must show
severe pain or suffering inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity); Guled
v. Mukasey, 515 F.3d 872, 881-82 (8th Cir. 2008) (noncitizen who does not meet
standard for asylum cannot meet more rigorous clear probability standard for
withholding of removal); Ngure v. Ashcroft, 367 F.3d 975, 992 (8th Cir. 2004) (in
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assessing CAT claim, all evidence relevant to the possibility of future torture should
be considered, including, inter alia, applicant’s ability to relocate to another area of
the country where torture is unlikely).
The petition for review is denied. See 8th Cir. R. 47B.
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