Marcelino Benuto Diaz v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCELINO BENUTO DIAZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-71545
Agency No. A096-236-200
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2018**
Pasadena, California
Before: BERZON, FISHER,*** and WATFORD, Circuit Judges.
The Immigration Judge (“IJ”) denied Marcelino Benuto Diaz’s claims for
asylum, withholding of removal, protection under the Convention Against Torture,
FILED
JUL 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.

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and voluntary departure. The Board of Immigration Appeals (“BIA”) upheld the
IJ’s decision and dismissed the appeal. Diaz now petitions for review of the BIA’s
decision.
This court lacks jurisdiction to review whether Diaz is eligible for asylum.
Diaz asserts that his mental illness is an “extraordinary circumstance” that excuses
his failure to meet the one-year application deadline. See 8 U.S.C.
§ 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(5)(i). But the agency found that Diaz’s
illness did not render him unable to apply for asylum. While Diaz disagrees, this
court cannot review factual determinations underlying the agency’s decision that
an asylum application is untimely. See Gasparyan v. Holder, 707 F.3d 1130, 1134
(9th Cir. 2013).
Turning to the withholding claim, substantial evidence supports the finding
that Diaz did not show his eligibility for relief. The IJ and BIA found no evidence
that the mistreatment Diaz suffered in Mexico was inflicted because of his mental
illness. This court has clarified that a petitioner need not show that his
membership in a particular social group was the “one central reason” for past
persecution. Barajas-Romero v. Lynch, 846 F.3d 351, 358 (9th Cir. 2017). But
Diaz’s mental illness nevertheless must have been a reason for his mistreatment.
See id. The agency was entitled to find that no evidence supported that conclusion.

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Substantial evidence also supports the finding that Diaz did not demonstrate
a likelihood of future persecution. 8 C.F.R. § 1208.16(b)(2). Diaz fears that in
Mexico he will become indigent, be unable to afford his medication, and either be
institutionalized or targeted by gangs and cartels. But the agency found
insufficient evidence that he would ever become indigent in the first place, noting
that he has family in Mexico. Substantial evidence supports the agency’s finding
that, with his family’s help, Diaz would be able to afford his medication.
The same reasoning applies to Diaz’s claim under the Convention Against
Torture. Both chains of events that Diaz fears will end in his torture depend on the
assumption that he will become indigent and visibly schizophrenic. Because Diaz
did not show that he will more likely than not become indigent, he did not show
that he will more likely than not be tortured, whether in a mental health facility or
on the streets by gang members and cartels.
Finally, this court lacks jurisdiction to review the agency’s determination
that Diaz does not qualify for voluntary departure. The only arguments Diaz
presents are factual, and when it comes to the decision whether to allow voluntary
departure, this court’s review is limited to constitutional claims and questions of
law. 8 U.S.C. §§ 1229c(f), 1252(a)(2)(D).
PETITION FOR REVIEW DENIED.

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