FILED
NOT FOR PUBLICATION
DEC 10 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS IVAN PLANCARTE- No. 20-70808
TOFOLLA, AKA Carlos Ivan Plancarte,
AKA Carlos Ivan Plancartetafoll, Agency No. A205-322-175
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 18, 2021
San Francisco, California
Before: THOMAS and McKEOWN, Circuit Judges, and MOLLOY,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, Senior District Judge for the
District of Montana, sitting by designation.
Carlos Ivan Plancarte-Tofolla petitions for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s (“IJ”) denial of his application for withholding of removal and relief under
the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We deny Plancarte-Tofolla’s petition.
I
Substantial evidence supports the BIA’s conclusion that Plancarte-Tofolla is
not eligible for withholding of removal under 8 U.S.C. § 1231(b)(3). Plancarte-
Tofolla’s grandparents’ speculation that family members were killed by the cartel
on a mistaken belief of a family relationship to a deceased drug lord does not
establish the requisite nexus between the murders and the espoused social group of
imputed family members of Enrique Plancarte or an imputed political opinion. See
Nagoulko v. I.N.S., 333 F.3d 1012, 1018 (9th Cir. 2003).
Substantial evidence also supports the BIA’s conclusion that Plancarte-
Tofolla has not shown a clear probability that he will be harmed upon return to
Mexico. The BIA did not err in recognizing that the continued unharmed presence
of Plancarte-Tofolla’s relatives and Enrique’s daughter Melissa Plancarte
undermines his claim of harm upon return when those individuals continue to bear
the family surname and thus remain part of his particular social group. See Kumar
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v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006) (unharmed parents of noncitizen
remaining in India did not undercut noncitizen’s claim of reasonable fear of
persecution because they were not members of the noncitizen’s protected group).
Substantial evidence also supports the BIA’s denial of Plancarte-Tofolla’s
CAT claim. Plancarte-Tofolla does not meet the standard for relief by claiming
“unspecified” violence to a family member and “generalized violence” in the
country. Santos-Ponce v. Wilkinson, 987 F.3d 886, 891 (9th Cir. 2021).
II
Any error the BIA may have made in failing to consider all of the factors
under Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008), in denying to continue
Plancarte-Tofolla’s removal hearing was harmless because the request was not
based on the merits of his petition, but rather to pursue a separate application for
cancellation of removal. As of the oral argument date, well over three years after
the continuance request was denied, Plancarte-Tofolla had still not filed an
application for cancellation of removal. Therefore, Plancarte-Tofolla did not suffer
any prejudice in the denial of the continuance request.
III
We deny Plancarte-Tofolla’s motion to dismiss (Dkt. 28) challenging the
IJ’s subject matter jurisdiction over his case due to the deficiencies in his Notice to
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Appear. Plancarte-Tofolla’s challenge itself is foreclosed by Circuit precedent.
See United States v. Bastide-Hernandez, 3 F.4th 1193, 1196 (9th Cir. 2021);
Aguilar Fermin v. Barr, 958 F.3d 887, 894 (9th Cir. 2020). And we lack appellate
jurisdiction over Plancarte-Tofolla’s new statutory construction argument raised
for the first time on appeal because that argument was not exhausted before the
agency. Alvarado v. Holder, 759 F.3d 1121, 1127–28 (9th Cir. 2014).
PETITION DENIED.
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