Jaime Rodriguez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME RODRIGUEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-71048
Agency No. A213-612-129
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 3, 2022**
Portland, Oregon
Before: OWENS and MILLER, Circuit Judges, and EZRA,*** District Judge.
Jaime Rodriguez, a native and citizen of Mexico, petitions for review of a
decision of the Board of Immigration Appeals dismissing his appeal from an
* 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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED
DEC 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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immigration judge’s denial of his application for asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
We review the agency’s factual findings for substantial evidence, and where
the Board “expresse[s] agreement with the reasoning of the [immigration judge],”
we review both decisions. Kumar v. Holder, 728 F.3d 993, 998 (9th Cir. 2013).
1. Although Rodriguez did not seek asylum within one year of his arrival
in the United States, his application was not time barred. See 8 U.S.C.
§ 1158(a)(2)(D). The agency assumed that he demonstrated changed circumstances
justifying an exception to the one-year bar but nevertheless concluded that
Rodriguez “did not apply for asylum within a reasonable period of time thereafter.”
See id.; 8 C.F.R. § 1208.4(a)(4)(ii); see also Taslimi v. Holder, 590 F.3d 981, 985
(9th Cir. 2010) (“[W]e . . . have jurisdiction to consider whether [the petitioner]
filed her asylum application within a ‘reasonable period’ given the changed
circumstances.”). Rodriguez’s son was attacked by the cartel only a few months
before Rodriguez applied for asylum, but because other members of his family had
been kidnapped and killed years earlier, the immigration judge reasoned that the
harm from the attack was “cumulative.” But “[o]ur law does not require that
‘changed circumstances’ constitute an entirely new conflict in an asylum
applicant’s country of origin, nor does it preclude an individual who has always

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feared persecution from seeking asylum because the risk of that persecution
increases.” Vahora v. Holder, 641 F.3d 1038, 1044 (9th Cir. 2011). And Rodriguez
filed for asylum within approximately six months of the attack on his son, which
was a reasonable period of time. See Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th
Cir. 2008) (“In the absence of any special considerations, the six months period
suggested in the preamble to the regulations is not an unreasonable presumptive
deadline.”).
2. Substantial evidence supports the agency’s determination that
Rodriguez failed to establish a nexus between any harm and a protected ground.
See 8 U.S.C. § 1158(b)(1)(B)(i). The Board adopted the immigration judge’s
reasoning that “even if [Rodriguez’s] fear were construed as [on account of] a
family-based particular social group, he did not show that his family members who
were harmed and two nephews who were killed in Mexico, were harmed on
account of their familial ties.” Instead, the Board noted that Rodriguez’s
“testimony indicates that they were harmed because they had become involved
with the drug cartels in the area.” Rodriguez attributed the attacks on his nephews
to the cartel’s “search for recruits,” explaining, “They’re trying to get people to sell
drugs for, for them there. And there’s people that don’t cooperate with them, well,
it goes badly for them.”
After discussing asylum, the agency did not separately address the less

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demanding nexus standard for withholding of removal. See Barajas-Romero v.
Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017) (holding that, under the withholding
statute, a protected ground need only be “a reason” for harm, rather than the
asylum statute’s more demanding “one central reason” standard). But the
immigration judge found no nexus under any standard, concluding that “it was not
shown that the harm suffered by [Rodriguez’s] family is tethered to a protected
ground.” We need not remand where, as here, “the [Board] adopted the
[immigration judge]’s finding of no nexus between the harm to [the petitioner] and
the alleged protected ground,” because “neither the result nor the [Board]’s basic
reasoning would change.” Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019).
3. The immigration judge did not deprive Rodriguez of due process by
denying him a continuance to obtain additional evidence, namely, death certificates
for his nephews, police reports from Mexico, identification for his family, and a
hospital report from the assault on his son. Rodriguez asked for “more time to find
evidence to present to the Court so that my case is more credible.” But the
evidence was unnecessary; as the immigration judge explained: “I credit your
testimony and I find that I do not need additional corroborating evidence for you
about the things that happened to your family. I believe that.”
Rodriguez now says that he sought an opportunity to gather evidence
proving that his nephews and son had been targeted on account of their family

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membership. Rodriguez was proceeding pro se before the agency, so the
immigration judge had a duty “to fully develop the record.” Jacinto v. INS, 208
F.3d 725, 733 (9th Cir. 2000). But that duty does not extend to proactively giving a
petitioner an opportunity to seek additional evidence on any issue on which he
might lose—particularly when existing testimony forecloses his position.
4. Substantial evidence supports the agency’s determination that
Rodriguez is not entitled to CAT relief. To warrant that protection, Rodriguez must
show that it is “more likely than not that he . . . would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). In response to the
immigration judge’s questions, Rodriguez testified that he did not “personally have
any problems” with organized crime before leaving Mexico, and he has presented
no evidence to suggest that he would be tortured upon his return.
PETITION DENIED.

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