Wayner Baudilio Cano-Cardona, a native and citizen of Guatemala, sought protection from removal in the United States. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), arguing that he faced persecution or torture if returned to Guatemala due to gang recruitment attempts. An immigration judge denied these applications, and the Board of Immigration Appeals (BIA) subsequently dismissed his appeal. The BIA also denied his motion to reopen the case to apply for adjustment of status and denied his request for a remand to pursue voluntary departure. Cano-Cardona then petitioned the Ninth Circuit for review of these decisions, challenging the jurisdiction of the immigration judge and the sufficiency of the evidence supporting the denial of relief.
The panel addressed five distinct issues. First, regarding jurisdiction, Cano-Cardona argued that the immigration judge lacked authority because the initial Notice to Appear did not specify the time and place of the hearing. The court rejected this, stating that its precedent in United States v. Bastide-Hernandez forecloses such arguments. Second, the court reviewed the denial of asylum and withholding of removal under the substantial evidence standard. To succeed, a petitioner must show that persecution was on account of a protected ground, such as membership in a particular social group or political opinion. For asylum, the protected ground must be 'one central reason' for the harm. The court found that the record supported the Board's conclusion that the gang members' motive was criminal rather than based on Cano-Cardona's family membership or anti-gang political opinion. The evidence showed the gang attempted to recruit Cano-Cardona's friends as well, indicating he was not singled out based on a protected characteristic. The court noted that fear of 'random violence by gang members' bears no nexus to a protected ground. Third, regarding CAT relief, the court found substantial evidence supported the denial because Cano-Cardona failed to provide individualized evidence that it was more likely than not he would be tortured if removed. Fourth, the court upheld the denial of the motion to reopen because Cano-Cardona failed to show that a visa was immediately available to him at the time he sought reopening, a statutory requirement. Finally, the court addressed the request for remand to apply for voluntary departure. The court held that Cano-Cardona forfeited this argument because he could have raised it when he filed his opening brief, even though he cited a new Board decision, Matter of M-F-O-, as intervening relief.
The decision confirms that claims of jurisdictional defects regarding the Notice to Appear are no longer viable in the Ninth Circuit following Bastide-Hernandez. It reinforces the strict application of the 'one central reason' nexus requirement in gang-related asylum cases, requiring petitioners to prove that the harm was motivated by a protected ground rather than general criminality. Petitioners must also be diligent in raising all potential forms of relief, such as voluntary departure, at the earliest opportunity to avoid forfeiture. The petitioner remains subject to removal without eligibility for the requested forms of relief.
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