NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE HERNANDEZ-MORALES, No. 15-72228
Petitioner, Agency No. A200-149-703
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 17, 2019
Seattle, Washington
Before: HAWKINS and W. FLETCHER, Circuit Judges, and BURY,** District
Judge.
Jose Hernandez-Morales, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeal’s (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings, Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th
Cir. 2014), and we review de novo claims of due process violations in immigration
proceedings, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny
the petition for review.
The agency found that Hernandez-Morales’s asylum claim was time-barred
and that he did not qualify for an exception to the one-year deadline. See 8 U.S.C.
§ 1158(a)(2)(B), (D). During oral argument, Hernandez-Morales, through counsel,
conceded that his asylum application was time-barred and declined to challenge the
agency’s dispositive determination. Thus, Hernandez-Morales’s asylum claim
fails.
As to withholding of removal, Hernandez-Morales fears harm from drug
traffickers in Mexico based on his prior service in the Mexican Army and the anti-
drug trafficking work he conducted during that service. He advanced two
protected grounds as the basis for his withholding of removal claim: (1) the
proposed particular social group of “former military service members who worked
in the investigation of illegal drugs,” and (2) an imputed political opinion opposing
drug trafficking.
Contrary to Hernandez-Morales’s contention, the BIA did not violate his due
process rights by not addressing whether he established a well-founded fear of
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persecution, because the BIA was not required to reach issues unnecessary to its
dispositive determination on his withholding of removal claim. See Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000) (requiring a showing of error to prevail on a
due process claim); see also Simeonov, 371 F.3d at 538 (courts and agencies are
not required to decide issues unnecessary to the results they reach).
Substantial evidence supports the agency’s determination that Hernandez-
Morales failed to establish that any harm he had experienced or would experience
in Mexico was or would be on account of a protected ground. The record shows
that during the time Hernandez-Morales lived in Mexico, and during his later visits
to Mexico from the United States, he never experienced personal contact, physical
harm, or threats from drug traffickers, and he was never the subject of any
recruitment efforts by a drug trafficking organization. Further, Hernandez-
Morales’s testimony made clear that his fellow service member, Pino, was a
current member of the military when killed by perpetrators that Hernandez-
Morales believed were drug traffickers, which distinguishes the harm Pino suffered
from that feared by Hernandez-Morales as a former member of the military.
Finally, the remaining record evidence, including a letter from Hernandez-
Morales’s wife and the 2011 State Department Country Report on Human Rights,
is insufficient to compel a contrary conclusion to the agency’s finding of no nexus
to a protected ground. See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)
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(the agency’s factual findings are to be reversed only if the evidence compels the
contrary conclusion). Thus, Hernandez-Morales’s withholding of removal claim
fails. See Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014) (establishing nexus
between persecution and an imputed political opinion requires a showing that
persecutors believed the applicant held a political opinion and targeted him
because of it); Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if
membership in a particular social group is established, an applicant must still show
that “persecution was or will be on account of his membership in such group”
(emphasis in original)); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(“An [applicant’s] desire to be free from harassment by criminals motivated by
theft or random violence by gang members bears no nexus to a protected
ground.”).
Substantial evidence also supports the agency’s denial of CAT relief because
Hernandez-Morales failed to show that it is more likely than not that he would be
tortured by or with the consent or acquiescence of the government if returned to
Mexico. See Garcia-Milian, 755 F.3d at 1033–35 (setting out the standard for
CAT relief and determining the record did not compel the conclusion that the
applicant established the state action component necessary to merit CAT relief).
Finally, Hernandez-Morales waived any challenge to the BIA’s denial of his
request to administratively close his case. See Ghahremani v. Gonzales, 498 F.3d
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993, 997–98 (9th Cir. 2007) (issues not raised and argued in the opening brief are
deemed waived).
PETITION DENIED.
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