Luis Hernandez-Velazquez v. Merrick Garland
20-70867
| 9th Cir. | Oct 14, 2021Background
- Petitioner Luis Miguel Hernandez-Velazquez, a Mexican national, sought cancellation of removal, asylum, withholding of removal, and CAT relief; the IJ denied relief and the BIA dismissed his appeal.
- Ninth Circuit reviews de novo legal questions (e.g., cognizability of a particular social group) and for substantial evidence factual findings.
- The court concluded it lacks jurisdiction to review the agency’s discretionary denial of cancellation based on failure to show "exceptional and extremely unusual hardship" to a qualifying relative.
- The record does not compel a finding of changed or extraordinary circumstances to excuse an untimely asylum application; asylum relief was denied.
- The agency found Hernandez-Velazquez failed to establish membership in a cognizable particular social group; withholding was denied on that ground.
- The agency’s denial of CAT relief was supported by substantial evidence because petitioner failed to show it was more likely than not he would be tortured by or with the consent/acquiescence of the Mexican government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review denial of cancellation (hardship) | Hernandez-Velazquez says he showed exceptional and extremely unusual hardship to a qualifying relative | Agency’s discretionary determination is not judicially reviewable under §1252(a)(2)(B)(i) | Court lacks jurisdiction; petition dismissed in part |
| Timeliness of asylum — changed/extraordinary circumstances | Asylum untimeliness excused by changed/extraordinary circumstances | Agency found petitioner did not establish such circumstances | Substantial evidence supports denial; asylum fails |
| Cognizability of particular social group (PSG) | Petitioner claims membership in a PSG (includes arguments based on youth and prior U.S. residence) | Agency found PSG not established; some PSG theories not preserved for review | Agency did not err; PSG not cognizable; court lacks jurisdiction to consider PSG theories raised first before the court |
| Withholding & CAT relief — government protection / likelihood of torture | Petitioner argues government unable/unwilling to protect and risk of persecution/torture exists | Agency found protection available/not likely persecuted or tortured by state actors | Withholding fails (review limited to BIA’s grounds); CAT denied for lack of likelihood of torture |
Key Cases Cited
- Conde Quevedo v. Barr, 947 F.3d 1238 (Ninth Cir.) (standard of review: de novo for legal questions; substantial evidence for factual findings)
- Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir.) (discretionary hardship determinations not reviewable under §1252(a)(2)(B)(i))
- Reyes v. Lynch, 842 F.3d 1125 (9th Cir.) (articulating the three-part test for a cognizable particular social group)
- Aden v. Holder, 589 F.3d 1040 (9th Cir.) (standard for CAT: more likely than not to be tortured by or with government consent/acquiescence)
- Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir.) (review is limited to the grounds relied on by the BIA)
- Barron v. Ashcroft, 358 F.3d 674 (9th Cir.) (court lacks jurisdiction to review claims not presented to the agency)