Maximiliano Guevara Davila v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAXIMILIANO GUEVARA DAVILA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-71000
Agency No. A201-174-102
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2022**
Pasadena, California
Before: BEA, IKUTA, and CHRISTEN, Circuit Judges.
Maximiliano Guevara Davila, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals (BIA) decision denying his
application for cancellation of removal and protection under the Convention
Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We
* 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).
FILED
DEC 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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review de novo questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.
2009). We review for substantial evidence the denial of CAT relief. Konou v.
Holder, 750 F.3d 1120, 1124 (9th Cir. 2014). Because the parties are familiar with
the facts, we recite only those facts necessary to decide the petition.
Guevara Davila entered the United States without inspection in or around
October 2000. On February 17, 2011, the Department of Homeland Security
(DHS) initiated removal proceedings. The notice to appear (NTA) filed with the
immigration court did not specify the time and place of Guevara Davila’s removal
hearing, but on February 28, 2011, the immigration court issued a hearing notice to
Guevara Davila, scheduling his initial hearing for March 21, 2011, at 1:00 p.m., at
the immigration court in Lancaster, California. Petitioner conceded removability
and subsequently filed for cancellation of removal and protection under the CAT.
The Immigration Judge (IJ) found that Guevara Davila failed to demonstrate
his three U.S. citizen children would suffer exceptional and extremely unusual
hardship if he were removed and that he did not establish he would be more likely
than not to face torture in Mexico. The BIA affirmed.
Before the Ninth Circuit, Guevara Davila raises three arguments: first, he
argues that the immigration court lacked jurisdiction over his proceedings because
the NTA did not specify the time and place of his initial hearing; second, he argues
the IJ and BIA applied the wrong legal standard in determining exceptional and

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extremely unusual hardship; and third, he argues that the BIA erred in finding that
he failed to establish he was more likely than not to face torture if removed to
Mexico.
Guevara Davila’s first argument fails under our recent decision in United
States v. Bastide-Hernandez, 39 F.4th 1187 (9th Cir. 2022). There, we held that
“[a] defective NTA does not affect the immigration court’s subject matter
jurisdiction.” Id. at 1190 (internal quotation marks omitted) (capitalization
altered). Furthermore, “filing of an undated NTA that is subsequently
supplemented with a notice of hearing,” as DHS did here, complies with the
applicable regulations. Id. at 1193.
Guevara Davila’s second argument is that the IJ and BIA applied the wrong
legal standard in denying cancellation of removal because they did not properly
consider certain hardship factors. We can discern no error in the standard the IJ
and BIA applied. To the extent Guevara Davila asks us to reweigh the hardship
factors, this court lacks jurisdiction to do so. Romero-Torres v. Ashcroft, 327 F.3d
887, 892 (9th Cir. 2003).
Finally, substantial evidence supports the BIA’s conclusion that Guevara
Davila is ineligible for CAT relief. He provides no indication that the criminal
activity his family members in Mexico have experienced amounts to torture, nor
that he would be tortured if removed. Similarly, “Petitioner[’s] generalized

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evidence of violence and crime in Mexico is not particular to Petitioner[] and is
insufficient to” show he is “more likely than not [to be] tortured if returned to
Mexico.” Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). As such,
the BIA’s conclusion is supported by substantial evidence.
PETITION DENIED.

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