Oscar Lopez Zamudio v. Merrick Garland
15-72591
| 9th Cir. | Nov 12, 2021Background
- Petitioner Oscar Alberto Lopez Zamudio, a Mexican national, sought asylum, withholding of removal, CAT protection, and cancellation of removal before an IJ; he also requested a continuance.
- The IJ denied the continuance and denied all relief; the BIA dismissed his appeal and affirmed the IJ’s rulings.
- The Ninth Circuit reviews the continuance denial for abuse of discretion and the agency’s factual findings for substantial evidence; questions of law are reviewed de novo.
- The agency found Lopez Zamudio failed to show a nexus between the harm he suffered or feared in Mexico and a protected ground, so asylum and withholding claims failed.
- The agency also found he failed to show it was more likely than not he would be tortured, with government consent or acquiescence, if returned to Mexico, so CAT relief was denied.
- Lopez Zamudio failed to exhaust or preserve several claimed errors before the BIA and did not challenge the BIA’s dispositive finding that he waived contesting the IJ’s conclusion that he lacked a qualifying relative for cancellation; his remand motion was denied. The temporary stay of removal remains until mandate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of continuance | Lopez Zamudio argued the IJ abused discretion by denying more time to prepare | Government argued he failed to show good cause under 8 C.F.R. § 1003.29 and Ahmed factors | Denial was not an abuse of discretion; no good cause shown |
| Asylum/Withholding nexus | He argued past harm/fear in Mexico was on account of a protected ground | Government argued harms were criminal/gang-related or random, not linked to protected ground | Substantial evidence supports denial; no nexus to protected ground (Zetino rule) |
| CAT relief | He argued he would likely be tortured if returned | Government argued petitioner failed to show torture by or with government consent/acquiescence | Substantial evidence supports denial; not more likely than not he would be tortured (Wakkary) |
| Cancellation of removal / remand | He sought remand and challenged IJ’s findings on qualifying relative | Government maintained he waived challenges and failed to meet heavy burden to remand | Claim failed: he waived challenge to qualifying-relative finding; remand denied |
Key Cases Cited
- Ahmed v. Holder, 569 F.3d 1009 (9th Cir.) (factors and abuse-of-discretion standard for continuance denials)
- Zetino v. Holder, 622 F.3d 1007 (9th Cir.) (criminal or random gang violence lacks nexus to protected ground)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir.) (standard for showing likelihood of torture for CAT relief)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir.) (agency not required to address every contention in detail)
- Barron v. Ashcroft, 358 F.3d 674 (9th Cir.) (court lacks jurisdiction to review claims not presented to the agency)
- Lopez-Vasquez v. Holder, 706 F.3d 1072 (9th Cir.) (issues not raised and argued in opening brief are waived)
- Shin v. Mukasey, 547 F.3d 1019 (9th Cir.) (heavy burden to show new evidence would likely change result on remand)