NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER JIMENEZ ESPINO, No. 19-72458
Petitioner, Agency No. A200-882-894
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of a Final Order of the
Department of Homeland Security
Submitted June 10, 2021**
Seattle, Washington
Before: GILMAN,*** GOULD, and MILLER, Circuit Judges.
Javier Jimenez Espino (“Jimenez”), a native and citizen of Mexico, first
entered the United States without permission in 2001. Jimenez was convicted for
*
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 Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
driving under the influence in 2007 and 2011. Following his 2011 conviction,
Jimenez was granted voluntary departure to Mexico. Jimenez tried to unlawfully re-
enter the United States and, in September 2011, he returned to Mexico under an
expedited removal order. Again, in October 2011, Jimenez tried to enter the United
States and was removed under an expedited removal order. Following this removal,
Jimenez once again entered the United States, and was taken into custody by
Immigration and Customs Enforcement officers in August 2019 in Washington.
DHS charged that Jimenez was subject to reinstatement of his October 2011 removal
order. 8 U.S.C. § 1231(a)(5). This time, Jimenez said he feared returning to Mexico,
and so he was interviewed by an asylum officer to determine if his fear was
reasonable. 8 C.F.R. § 208.31(b). After the interview, the asylum officer concluded
that Jimenez had not established a reasonable fear of persecution or torture in
Mexico.
Jimenez next asked for review by an immigration judge (“IJ”). The IJ, after a
hearing, denied Jimenez’s appeal, and this appeal followed. We have jurisdiction
pursuant to 8 U.S.C. § 1252, and we deny the petition. Ayala v. Sessions, 855 F.3d
1012, 1017–18 (9th Cir. 2017).
We review an IJ’s determination that an alien did not demonstrate a reasonable
fear of persecution or torture for substantial evidence. Bartolome v. Sessions, 904
F.3d 803, 811 (9th Cir. 2018). To reverse the IJ’s negative reasonable fear
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determination, we must determine that any reasonable adjudicator would be
compelled by the evidence to conclude to the contrary. Id. “We review de novo due
process challenges to reasonable fear proceedings.” Zuniga v. Barr, 946 F.3d 464,
466 (9th Cir. 2019) (per curiam).
For the following reasons, Jimenez’s petition is denied.
First, substantial evidence supports the IJ’s determination that Jimenez did not
establish a reasonable fear of persecution or torture. The record does not compel the
conclusion that Jimenez’s fear was reasonable. Jimenez only speculated about the
possibility that Santiago Villalba Mederos (aka “Pucho”) would harm him.
Bartolome, 904 F.3d at 814 (“Speculation on what could occur is not enough to
establish a reasonable fear.”). Jimenez also did not provide a reason to conclude that
Pucho’s animus towards him was due to a protected ground rather than just for
personal retribution. Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An
alien’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.”). Similarly,
substantial evidence supports the IJ’s determination that Jimenez did not establish a
reasonable possibility of state action sufficient to warrant protection under the
Convention Against Torture. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034–
35 (9th Cir. 2014).
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Second, the IJ properly exercised his discretion in denying Jimenez’s motion
for a continuance of the hearing, and the IJ did not violate due process in suggesting
he lacked authority to grant a continuance. Jimenez received a full and fair
opportunity to present his claim that he feared Pucho, and he gave no explanation
for why “talk[ing] to the officers involved with the FBI” would support his
reasonable fear showing, and thus justify a continuance. The IJ was not required to
allow Jimenez to present new evidence during the review of the negative reasonable
fear determination. See Bartolome, 904 F.3d at 813.
Jimenez next argues that the IJ “erred in finding that he had no authority to
grant a brief continuance.” Although the IJ did say that he lacked authority to grant
a continuance, he nevertheless considered Jimenez’s request on the merits. Thus,
although an IJ abuses his discretion by denying a discretionary motion under the
erroneous belief that he lacks authority to grant it, Bartolome, 904 F.3d at 815, any
error was harmless. In particular, the IJ stated that he was not going to give an
extension of time for a hearing because he believed the circumstances did not merit
it, and the IJ expressly noted that “it’s already been continued once where we’re kind
of outside of our guidelines already to get this done.” The IJ also noted that “the
issue in this case is not a lack of evidence.” In sum, Jimenez makes no showing that
the IJ’s denial of his request for a continuance was fundamentally unfair or
prejudiced him in any way.
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PETITION FOR REVIEW DENIED.
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