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 by gang members. The immigration judge denied these applications, and the Board of Immigration Appeals (BIA) dismissed his appeal. The BIA also denied his subsequent motion to reopen the case to allow him to apply for adjustment of status. Additionally, Cano-Cardona requested a remand to pursue voluntary departure. He filed petitions for review in the Ninth Circuit challenging these decisions.
The panel addressed five distinct issues. First, regarding jurisdiction, Cano-Cardona argued 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 Ninth Circuit precedent, specifically the en banc decision in United States v. Bastide-Hernandez, forecloses this argument. Second, the court reviewed the denial of asylum and withholding of removal under the substantial evidence standard. To qualify, a petitioner must show persecution on account of a protected ground, such as membership in a particular social group or political opinion. The court found the record supported the BIA's conclusion that the gang's motive was criminal, not based on Cano-Cardona's family membership or anti-gang political opinion. The court noted that the gang attempted to recruit Cano-Cardona's friends as well, indicating he was not singled out based on a protected characteristic. Furthermore, there was no evidence the gang was aware of his political views. The court cited Zetino v. Holder to explain that random violence by gang members lacks the necessary nexus to a protected ground. Third, the court upheld the denial of CAT relief, which requires showing it is more likely than not that the petitioner would be tortured if removed. The court found no individualized evidence in the record that Cano-Cardona faced a particularized risk of torture. Fourth, the court affirmed the denial of the motion to reopen. The BIA found Cano-Cardona failed to show a visa was immediately available, a requirement for adjustment of status. The court noted that while Cano-Cardona argued a visa is now available, he did not dispute that one was not available when he filed the motion. Fifth, the court denied the request for a remand for voluntary departure. Although Cano-Cardona cited a new BIA decision, Matter of M-F-O-, as intervening relief, the court held he forfeited this argument by failing to raise it in his opening brief.
The petitions for review are denied, and the BIA's orders denying asylum, withholding of removal, CAT protection, and the motion to reopen stand. No remand for voluntary departure is granted. The decision reinforces the strict requirement that gang violence must be linked to a protected ground to qualify for asylum, and it confirms that jurisdictional challenges regarding the notice to appear are no longer viable in the Ninth Circuit following Bastide-Hernandez. The petitioner remains subject to removal.
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