Francisco SALINAS-MEDINA, aka Francisco Medina, aka Francisco Medina Herrera, aka Abel Salinas, aka Francisco Salinas, Petitioner, v. William P. BARR, Attorney General, Respondent.
Decided: December 09, 2019
Before: WARDLAW, W. FLETCHER, and LINN,** Circuit Judges.
James Todd Bennett, El Cerrito, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Lance Lomond Jolley, Esquire, Trial Attorney, Craig Alan Newell, Jr., Esquire, Trial Attorney, Anthony Cardozo Payne, Senior Litigation Counsel, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent
Francisco Salinas Medina, a native and citizen of Mexico, petitions for review of a Board of Immigrations Appeals (BIA) decision denying his motion to remand for a competency hearing and affirming the Immigration Judge’s (IJ) denial of withholding of removal and Convention Against Torture (CAT) protection. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.
1. The BIA acted within its authority, according to its standards, and in conformance with due process when it denied Salinas’s motion to remand. Salinas’s motion is best viewed as a motion to reopen because it seeks further competency proceedings based on new evidence that Salinas was diagnosed with unspecified psychosis or psychotic disorder. Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992); 8 C.F.R. § 1003.2(c)(1), (4). The BIA did not abuse its discretion in concluding in the first instance that reopening proceedings was unnecessary. See Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1119 (9th Cir. 2019) (“[T]he BIA [can] exercis[e] its discretion in the first instance.”); 8 C.F.R. § 1003.2(c)(1) (standard to reopen). The BIA reasonably concluded that Salinas’s new evidence did not indicate that he was incompetent, given that he was represented by counsel and able to participate in the proceedings without any apparent difficulty. Salgado v. Sessions, 889 F.3d 982, 987–89 (9th Cir. 2018); Matter of M-A-M–, 25 I. & N. Dec. 474, 477 (BIA 2011).
2. Substantial evidence supports the BIA’s determination that Salinas failed to establish the requisite nexus between the alleged persecution and a protected ground. See 8 U.S.C. § 1231(b)(3); Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017). Salinas waived his argument that the IJ never considered whether he reasonably feared retribution by the La Familia cartel. Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc). The record demonstrates that Salinas fears the Tijuana Cartel will retaliate against him because he refused to pay them $25,000 for a backpack that he lost when trying to cross the border, not on account of his family membership or an imputed anti-cartel political opinion. See Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996); Santos-Lemus v. Mukasey, 542 F.3d 738, 743, 746–47 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013); Matter of L-E-A–, 27 I. & N. Dec. 40, 45 (BIA 2017), overruled on other grounds in 27 I. & N. Dec. 581 (BIA 2019).
3. Substantial evidence supports the BIA’s determination that Salinas is ineligible for CAT protection because he failed to establish a clear probability of torture. 8 C.F.R. § 1208.16(c). Salinas’s evidence of generalized violence perpetrated by cartels is insufficient to obtain CAT protection, Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 895 (9th Cir. 2018), especially when he was never harmed while in Mexico and his family continues to live in Mexico without harm, Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029–30 (9th Cir. 2019).
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