Miguel Hernandez-Lopez v. Jefferson Sessions
694 F. App'x 558
| 9th Cir. | 2017Background
- Petitioner Miguel Angel Hernandez-Lopez, a Mexican national, sought asylum, withholding of removal, and CAT relief before the BIA.
- The BIA denied asylum solely because the application was untimely and Hernandez-Lopez failed to show changed or extraordinary circumstances to excuse the delay under 8 U.S.C. § 1158(a)(2)(B), (a)(2)(D).
- Hernandez-Lopez appealed the BIA’s denial; in his appellate brief he did not challenge the BIA’s timeliness determination and instead addressed the merits of persecution/torture claims.
- The Ninth Circuit reviews BIA denials of asylum, withholding, and CAT relief under the substantial-evidence standard.
- The court found the BIA’s conclusion—that Hernandez-Lopez failed to show it is more likely than not he would be persecuted or tortured if returned to Mexico—was supported by substantial evidence.
- Because the substantial-evidence finding resolved withholding and CAT relief, the court did not reach the BIA’s separate nexus determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum application | Hernandez-Lopez did not contest on appeal (no briefing) | BIA: application untimely and no changed/extraordinary circumstances | Waived on appeal for failure to brief; BIA determination left intact |
| Eligibility for withholding of removal | Hernandez-Lopez argued he would more likely than not face persecution on return | BIA/Respondent argued record lacks substantial evidence of such likelihood | Denied: substantial evidence supports BIA that petitioner failed to meet the more-likely-than-not standard |
| CAT relief | Hernandez-Lopez argued risk of torture upon return | BIA argued petitioner failed to show torture by or with acquiescence of government | Denied: BIA’s conclusion that petitioner did not meet CAT standard is supported by substantial evidence |
| Nexus to protected ground / government acquiescence | Hernandez-Lopez argued persecution/torture tied to protected ground or with government acquiescence | BIA found insufficient nexus and lack of government involvement/acquiescence | Not reached by the court because substantial-evidence finding independently disposes of withholding and CAT claims |
Key Cases Cited
- Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (standard of review: substantial-evidence for BIA factual determinations)
- Corro-Barragan v. Holder, 718 F.3d 1174 (9th Cir. 2013) (failure to brief an issue on appeal results in waiver)
- Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (Ninth Circuit has jurisdiction to review BIA decisions on changed circumstances)
- Khunaverdiants v. Mukasey, 548 F.3d 760 (9th Cir. 2008) (jurisdiction over timeliness predicate fact questions)
- Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008) (jurisdiction to review BIA decisions on extraordinary circumstances)