FILED
NOT FOR PUBLICATION
MAY 13 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER FRANCISCO CASTILLO No. 19-71665
CASTILLO,
Agency No. A095-734-805
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 10, 2021**
Pasadena, California
Before: BYBEE and BRESS, Circuit Judges, and CARDONE,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
Francisco Javier Castillo Castillo petitions for review of a Board of
Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ) order
of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. “Where . . . the
BIA has reviewed the IJ’s decision and incorporated portions of it as its own, we
treat the incorporated parts of the IJ’s decision as the BIA’s.” Molina-Estrada v.
INS, 293 F.3d 1089, 1093 (9th Cir. 2002). We consider only the grounds relied
upon by the BIA in reaching its decision. Santiago-Rodriguez v. Holder, 657 F.3d
820, 829 (9th Cir. 2011). We review factual determinations for substantial
evidence, Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014), and legal
questions, including questions of our own jurisdiction, de novo. Zheng v. Ashcroft,
332 F.3d 1186, 1193 (9th Cir. 2003). We deny the petition in part and dismiss the
petition in part.
1. The IJ did not abuse his discretion in finding Castillo mentally
competent in his removal proceedings and in not imposing additional procedural
safeguards. Here, the IJ complied with the process prescribed for determining
competency by questioning Castillo about his competence. See Matter of M-A-M-,
25 I. & N. Dec. 474, 479 (BIA 2011). And despite finding Castillo competent, the
IJ also found that Castillo’s representation by counsel was a sufficient procedural
safeguard. See Salgado v. Sessions, 889 F.3d 982, 988 (9th Cir. 2018).
2
2. We decline to consider Castillo’s claim that the IJ erred in finding that
his entry to the United States did not establish his eligibility for adjustment of
status under Matter of Quilantan, 25 I. & N. Dec. 285 (BIA 2010), because
Castillo has never sought adjustment of status and conceded his ineligibility.
3. We lack jurisdiction over Castillo’s cancellation of removal claim.
The BIA affirmed only the IJ’s discretionary determination that Castillo had not
demonstrated exceptional and extremely unusual hardship to his U.S. citizen sons,
and we lack jurisdiction over such discretionary denials of relief. 8 U.S.C.
§§ 1252(a)(2)(B)(i), 1229b(b)(1). Nor does Castillo claim that the IJ committed a
legal error that would permit review. Cf. Figueroa v. Mukasey, 543 F.3d 487,
494–96 (9th Cir. 2008), overruled on other grounds by Abebe v. Mukasey, 554
F.3d 1203 (9th Cir. 2009).
4. Substantial evidence supports the BIA’s finding that Castillo failed to
establish a nexus for his asylum and withholding of removal claims because he
feared only generalized gang violence.1 Asylum and withholding of removal
require a nexus between the particular social group and past or future persecution.
8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i), 1231(b)(3)(A); Barajas-Romero v.
1
Because the BIA assumed that Castillo established that an exception
applied for the one year filing deadline for his asylum claim, we do not consider
the timeliness of Castillo’s application. See Santiago-Rodriguez, 657 F.3d at 829.
3
Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017). Castillo testified that he feared harm
at the hands of a Mexican cartel due to his “family” relationship to his grandmother
and uncle, who had been targeted by the cartel in three incidents. Castillo testified
that the cartel was motivated by its desire to take over his family’s land and force
his uncle to work for them, and that they were targeted because his uncle owned a
business and his grandmother owned land. However, fear of harassment by gangs
or criminals alone bears no nexus to a protected ground. Zetino v. Holder, 622
F.3d 1007, 1016 (9th Cir. 2010); see also Gormley v. Ashcroft, 364 F.3d 1172,
1177 (9th Cir. 2004) (finding random criminal acts bear no nexus to a protected
ground). Substantial evidence supports the agency’s determination that the cartel
was motivated by its own criminal purposes, not by animus for the family.
5. Substantial evidence supports the BIA’s determination that Castillo
failed to establish government acquiescence entitling him to protection under the
Convention Against Torture (CAT). An alien is eligible for CAT protection where
he “establish[es] that it is more likely than not that he . . . would be tortured” “by,
or at the instigation of, or with the consent or acquiescence of, a public official
acting in an official capacity or other person acting in an official capacity” if
removed. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). In support of his claim,
Castillo points only to a 2016 Department of State country conditions report
4
describing government corruption and organized criminal activity, but he does not
offer evidence of a particularized threat. Although “country conditions alone can
play a decisive role” in granting CAT relief, Nuru v. Gonzales, 404 F.3d 1207,
1219 (9th Cir. 2005) (internal quotation and citation omitted), “generalized
evidence of violence and crime in Mexico” is not sufficient, Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Moreover, “a government does not
‘acquiesce’ to torture where the government actively, albeit not entirely
successfully, combats the illegal activities.” Del Cid Marroquin v. Lynch, 823
F.3d 933, 937 (9th Cir. 2016) (internal quotation and citation omitted). Here, a
separate report submitted as country conditions evidence shows that the Mexican
government has taken steps to combat organized crime.
6. We lack jurisdiction to consider Castillo’s application for a waiver of
inadmissibility (U Visa) under 8 U.S.C. §§ 1182(d)(3)(A)(ii). Man v. Barr, 940
F.3d 1354, 1357–58 (9th Cir. 2019), cert. denied, 141 S. Ct. 893 (2020).
PETITION DENIED IN PART AND DISMISSED IN PART.
5