EVERADO VELAZQUEZ HERNANDEZ, AKA Everado Hernandez Velazquez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVERADO VELAZQUEZ HERNANDEZ,
AKA Everado Hernandez Velazquez,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71151
Agency No. A208-308-238
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2022**
San Francisco, California
Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,*** Judge.
Petitioner Everado Velazquez Hernandez seeks review of a Board of
Immigration Appeals (BIA) decision dismissing the appeal of the Immigration
* 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 Jane A. Restani, Judge for the United States Court of International
Trade, sitting by designation.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Judge’s (IJ’s) denial of his applications for asylum, withholding of removal, and
voluntary departure.1 We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition.
Petitioner is a native and citizen of Mexico. Petitioner alleges that, in October
2010, he was kidnapped and beaten in Tijuana, Mexico, by two armed men who took
his phone and wallet containing information about his family, and released him after
one day when a friend paid the kidnappers $2,500. He did not report the incident to
Mexican authorities, or to the apprehending officers who caught him trying to cross
into the U.S. He reentered the U.S. in November 2010, and remained undetected
until he was arrested for—and pled guilty to—drunk driving in California.
Removal proceedings were initiated and, after more than six and a half years
following his last reentry, Petitioner applied for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). He sought to excuse
his untimely asylum application on the basis that he feared being returned to Mexico,
that the country conditions were so unfavorable that he was “afraid to apply for
asylum,” and that he didn’t know his rights. Petitioner also claimed his kidnapping
caused lingering trauma, but he didn’t invoke trauma as a reason for the asylum
application delay. He testified he had never been diagnosed with any mental illness
1 Petitioner did not appeal the IJ’s denial of his request for CAT protection.

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or sought psychiatric help. When asked whether he specifically feared being
returned to Tierra Blanca where he had previously lived, he answered that “the
criminal organizations” in Mexico are “very big and they’re extended all over the
country,” but he hadn’t experienced any harm from criminals there.
In support of his applications, Petitioner proffered three different social group
definitions: (i) “Mexican citizens returning to Mexico from the United States who
are perceived as affluent and Americanized;” (ii) “Indigenous Mexican citizens
returning to Mexico from the United States who are perceived to be affluent and
Americanized;” and (iii) “Previously persecuted by domestic violence and on
account of ethnicity, indigenous Mexican citizens returning to Mexico from the
United States who are perceived as affluent and Americanized and who lack familial
and societal protection from future persecution.” When asked if Mexico’s
government had ever harmed Petitioner on account of his race, he answered that
police harm indigenous people by not listening to them or tending to their
necessities.
On May 21, 2018, the IJ denied Petitioner’s application for relief in its
entirety. On April 6, 2020, the BIA dismissed his appeal, including new arguments
raised therein. Petitioner timely petitioned for review.2
2 Also pending is Petitioner’s motion to supplement the record. The motion is
denied. Under 8 U.S.C. § 1252(b)(4)(A), our review is confined to the

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“Whether a group constitutes a ‘particular social group’ … is a question of
law we review de novo.” Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010).
But whether an applicant has shown that his persecutor was or would be motivated
by a protected ground—i.e., whether the “nexus” requirement has been satisfied—
is reviewed under the substantial evidence standard. See Parussimova v. Mukasey,
555 F.3d 734, 739 (9th Cir. 2009). Under this deferential standard, factual findings
are “conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, to reverse the BIA’s finding under
substantial evidence review, “we must find that the evidence not only supports that
conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
Petitioner makes four arguments, none of which succeeds.
First, he argues the agency lacks jurisdiction in the wake of Pereira v.
Sessions, 138 S. Ct. 2105 (2018). That argument is directly foreclosed by United
States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc).
Second, Petitioner argues he was denied his due process right to a full and fair
hearing because the IJ precluded witness testimony which Petitioner claims was
probative of his request for asylum (and for a voluntary departure), and because the
administrative record on which the order of removal is based, absent rare exceptions
not applicable here. Fisher v. INS, 79 F.3d 955, 964 (9th Cir. 1996). We also deny
Petitioner’s request that we hold this case in abeyance while Petitioner pursues a
motion to reopen before the BIA.

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BIA didn’t remand to correct an untranslated portion of the transcript where
Petitioner had answered whether Mexico’s government had persecuted him. Due
process challenges are reviewed de novo. Padilla v. Ashcroft, 334 F.3d 921, 923
(9th Cir. 2003). “A petition for review will only be granted on due process grounds
if ‘(1) the proceeding was so fundamentally unfair that the alien was prevented from
reasonably presenting his case, and (2) the alien demonstrates prejudice, which
means that the outcome of the proceeding may have been affected by the alleged
violation.’” Zetino v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010) (quoting Ibarra-
Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006)).
Here, Petitioner was not prevented from reasonably presenting his case since
the IJ admitted the written testimony of the witnesses, and both the IJ and BIA
explicitly considered such evidence. Petitioner also fails to explain how oral
testimony from these witnesses and the untranslated segment of the transcript could
have changed the outcome of the agency’s decision.
Third, Petitioner asserts that due process requires the agency to consider
whether his post-traumatic stress disorder (PTSD) constituted an extraordinary
circumstance excusing the lateness of his asylum application. See 8 C.F.R.
§ 208.4(a)(5)(i). Not only are we precluded from evaluating a factual issue recast as
a due process issue, 8 U.S.C. § 1158(a)(3), but Petitioner fails to explain how fear,
trauma, or his alleged PTSD constitutes such an extraordinary circumstance that it

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can explain more than six years of delay in seeking medical attention or filing for
asylum. See 8 C.F.R. § 208.4(a)(5).
Fourth, as to withholding of removal, Petitioner argues that the IJ “did not
consider Petitioner’s ethnicity as a separate protected ground for asylum and
withholding of removal.” To establish eligibility for withholding of removal, an
alien must show that it is “more likely than not” that his “life or freedom would be
threatened in th[e] [originating] country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” Zehatye
v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006); 8 U.S.C. § 1231(b)(3)(A)
(emphasis added). The BIA did not err in holding that Petitioner’s three particular
social groups are not cognizable because they are “amorphous, overbroad, and not
defined with sufficient particularity.” See Delgado-Ortiz v. Holder, 600 F.3d 1148,
1151–52 (9th Cir. 2010). Most importantly, the record does not compel a different
conclusion from the BIA’s determination that, since the kidnappers were
extortionists, Petitioner failed to show any nexus between his indigenous
background and any particular harm suffered (or feared). Thus, Petitioner’s claim
for withholding of removal reduces to a general fear of crime, which does not show
a nexus to a protected ground. See Zetino, 622 F.3d at 1016.
To the extent Petitioner challenges the agency’s denial of voluntary departure,

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the denial is supported by substantial evidence.
PETITION DENIED.

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