NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENCESLAO JIMENEZ-ISLAS, No. 16-72698
Petitioner, Agency No. A205-648-676
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 18, 2022**
Seattle, Washington
Before: WARDLAW, GOULD, and BENNETT, Circuit Judges.
Petitioner Wenceslao Jimenez-Islas challenges the Board of Immigration
Appeals’ (“BIA”) denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252, and deny the petition in part and dismiss it in part.
*
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).
Petitioner, a native and citizen of Mexico, entered the United States without
permission in 1999. Petitioner was convicted of driving under the influence on
December 19, 2013. Removal proceedings against Petitioner began on December
20, 2013. Petitioner applied for asylum, withholding of removal, and CAT
protection on August 9, 2014.
The Immigration Judge (“IJ”) denied all relief. The IJ found that Petitioner’s
asylum application was barred because he had failed to file within a year of arrival.
8 U.S.C. § 1158(a)(2)(B). Petitioner claimed that he was unaware of asylum until
his arrest, but the IJ rejected this claim because, without more, ignorance of the law
is not an acceptable excuse. 8 U.S.C. § 1158(a)(2)(D) (requiring changed
circumstances materially affecting eligibility for asylum, or extraordinary
circumstances directly related to the delay, to qualify for exemption from time bar).
The IJ also held that Petitioner’s asylum application failed on the merits
because he had not demonstrated past persecution or a nexus to a protected ground.
Although Petitioner alleged that he and his family were attacked in Mexico, the IJ
noted that Petitioner did not know why they were attacked. The IJ found, citing
Petitioner’s testimony, that the attacks on his brothers seem to be a dispute over a
motorcycle or attempted robbery and Petitioner may have been attacked because he
was mistaken for someone else. The IJ also cited Petitioner’s testimony that his
attackers were known to “rob and kill anyone in the community with equal vigor.”
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The IJ also held that Petitioner failed to show a reasonable fear of persecution
in Mexico. Petitioner suffered only a knife cut to his hand when he was attacked in
Mexico, and he relocated to a different neighborhood in his hometown following the
attack and lived there without incident for three years until he left for the United
States. The IJ held that, because Petitioner failed to meet the burden of proof for
asylum, he also “does not meet the higher burden of proof for withholding of
removal.” The IJ denied CAT relief, finding that the past harm to Petitioner did not
rise to the level of torture, that evidence of country conditions and Petitioner’s
testimony did not establish a clear probability of torture, and that, even if there were
a clear probability of torture, Petitioner failed to show that it would occur with the
consent or acquiescence of the government.
The BIA affirmed the denial of asylum and withholding of removal for the
same reasons cited by the IJ. The BIA also affirmed the denial of CAT relief, noting
that Petitioner did not “specifically contest[]” the IJ’s denial before the BIA. “Where
the BIA issues its own decision but relies in part on the immigration judge’s
reasoning, we review both decisions.” Singh v. Holder, 753 F.3d 826, 830 (9th Cir.
2014) (citation omitted). “We review for substantial evidence the factual findings
supporting the BIA’s decision that an applicant has not established eligibility for
asylum, withholding of removal, or relief under CAT.” Madrigal v. Holder, 716 F.3d
499, 503 (9th Cir. 2013) (citations omitted).
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The agency’s denial of asylum was not erroneous. Petitioner failed to apply
within a year of arrival. He arrived in 1999 and applied for asylum in 2014. And
Petitioner failed in this appeal to challenge the agency’s finding that ignorance of
the law was not an acceptable excuse. “[A]n issue referred to in the appellant’s
statement of the case but not discussed in the body of the opening brief is deemed
waived.” Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). Thus,
Petitioner waived his argument that he timely applied for asylum.
Even if Petitioner had not waived the timeliness issue, the denial of asylum
was not erroneous. “As a general rule, ignorance of the law is no excuse . . . .”
Antonio-Martinez v. I.N.S., 317 F.3d 1089, 1093 (9th Cir. 2003) (citation omitted).
Petitioner also failed to show that a protected ground was a “central reason” for any
persecution. See Barajas-Romero v. Lynch, 846 F.3d 351, 358 (9th Cir. 2017).
Petitioner stated that his brothers may have been attacked “because they both worked
in bars and maybe people thought they had money”; those who attacked one brother
refused to pay after damaging his motorcycle and those who attacked the other tried
to steal his car. As for the attack against Petitioner, Petitioner stated that the
assailants “seemed like they mistook my friend for his brother,” indicating that he
may not have been attacked if not for the possible mistaken identification.
The agency’s denial of withholding of removal was also not erroneous
because the agency correctly found that Petitioner did not meet the standard required
for asylum. Petitioner’s “failure to satisfy the ‘well-founded fear’ standard
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applicable to asylum applications necessarily preclude[s] his satisfying the more
stringent ‘clear probability of persecution’ that withholding of removal requires.”
Alvarez-Santos v. I.N.S., 332 F.3d 1245, 1255 (9th Cir. 2003) (citation omitted).
The denial of CAT relief was also not erroneous. First, Petitioner failed to
exhaust the issue before the BIA, and thus we lack jurisdiction to review it. “Before
a petitioner can raise an argument on appeal, the petitioner must first raise the issue
before the BIA or IJ.” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003).
Moreover, the IJ correctly found that the harm Petitioner suffered in Mexico, a knife
cut to the hand, did not amount to torture. “Torture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel, inhuman or degrading
treatment . . . .” Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (cleaned up).
Petitioner’s reliance on generalized violence in Mexico does not show eligibility for
relief because “evidence that a government has been generally ineffective in
preventing or investigating” crime does not “raise an inference that public officials
are likely to acquiesce in torture, absent evidence of corruption or other inability or
unwillingness to oppose criminal organizations.” Garcia-Milian v. Holder, 755 F.3d
1026, 1034 (9th Cir. 2014).
PETITION DENIED IN PART AND DISMISSED IN PART.
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