NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO CESAR MEDINA MELENDEZ, No. 20-71266
Petitioner, Agency No. A094-292-254
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2021**
Pasadena, California
Before: GRABER, CALLAHAN, and FORREST, Circuit Judges.
Julio Cesar Medina-Melendez seeks review of a Board of Immigration
Appeals’ (BIA) order denying his application for withholding of removal and
protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252(a) and dismiss in part and deny in part his petition.
*
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).
1. We lack jurisdiction to consider Medina’s due process claim that the
Immigration Judge (IJ) improperly barred him from introducing additional
evidence at his 2018 hearing about (1) his alleged persecutor’s continued political
influence and (2) the likelihood of future persecution and torture because Medina
did not present this claim to the BIA. See Aguilar-Osorio v. Garland, 991 F.3d
997, 999 (9th Cir. 2021) (per curiam). Even if Medina had exhausted this claim, he
waived it by not raising it in his opening brief. See Velasquez-Gaspar v. Barr, 976
F.3d 1062, 1065 (9th Cir. 2020).
2. Substantial evidence supports the BIA’s finding that Medina is
ineligible for withholding of removal and CAT protection. See Garcia v.
Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (stating standard). Although the
IJ’s conclusion that Medina’s sister qualifies for asylum bears on whether Medina
can establish a nexus between his family group and future persecution, it does not
control whether he can establish a clear probability that he would suffer future
harm. See id. at 1146 (noting that “[t]he ‘clear probability’ standard for
withholding is a more stringent burden of proof than the standard for asylum,
which does not require that the applicant demonstrate that harm would be more
likely than not to occur” (citation omitted)). Medina offered only conjectural
evidence of his alleged persecutor’s continued political influence and desire for
revenge. See 8 U.S.C. § 1231(b)(3)(C); see also Bartolome v. Sessions, 904 F.3d
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803, 814 (9th Cir. 2018) (“Speculation on what could occur is not enough to
establish a reasonable fear.”). Regarding his CAT claim, Medina similarly only
speculated that he would be tortured if returned to Honduras. Garcia, 988 F.3d at
1147–48 (citing In re V-X-, 26 I. & N. Dec. 147, 154 (B.I.A. 2013)).
The BIA correctly relied on the passage of time in denying Medina’s
application, see Gui v. INS, 280 F.3d 1217, 1230 (9th Cir. 2002); see also 8 C.F.R.
§ 1208.24(b)(1), despite the BIA’s 2016 unopposed remand causing some of the
delay in resolving Medina’s application. And even if the BIA erred by finding that
the IJ initially concluded that Medina was not credible the error was harmless
because the BIA accepted Medina’s testimony as credible for the purposes of
appeal.
3. The BIA did not violate Medina’s due process rights. The possibility
that another fact finder might have drawn a different inference from the record
neither negates the substantial evidence in the record that supports the BIA’s
decision nor establishes a due process violation. Garcia, 988 F.3d at 1142. Instead
of offering a “boilerplate” answer to Medina’s appeal, the BIA specifically
explained why it agreed with the IJ that Medina failed to establish a clear
probability of future harm if he returned to Honduras and noted that there was no
support for Medina’s assertion that the IJ ignored the evidence.
4. Finally, the record does not support Medina’s conclusory argument
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that the BIA misapplied the standard of review.
PETITION DISMISSED IN PART AND DENIED IN PART.
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