Javier Gavarrete Navarro v. MERRICK B. GARLAND, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER GAVARRETE NAVARRO,
Petitioner,
v.
MERRICK B. GARLAND, U.S. Attorney
General,
Respondent.
No. 22-65
Agency No. A094-298-578
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2023
Pasadena, California
Before: BRESS and MENDOZA, Circuit Judges, and ERICKSEN,** District
Judge.
Javier Gavarrete Navarro, a native and citizen of Honduras, petitions for
review of a Board of Immigration Appeals (BIA) decision dismissing his appeal
from an Immigration Judge’s (IJ) denial of asylum, withholding of removal
pursuant to Section 241(b)(3) of the Immigration and Nationality Act (INA), and
relief under the Convention Against Torture (CAT). Gavarrete Navarro also
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Joan N. Ericksen, United States District Judge for
the District of Minnesota, sitting by designation.
FILED
APR 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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challenges the BIA’s denial of his motion to remand the proceedings to the IJ.
We review the agency’s denial of asylum, withholding of removal, and
CAT relief for substantial evidence. See Singh v. Holder, 753 F.3d 826, 830 (9th
Cir. 2014); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078 (9th Cir. 2015).
“Under this standard, we must uphold the agency determination unless the
evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019). We review the BIA’s denial of a motion to remand
for abuse of discretion. Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir. 1999).1
We have jurisdiction under 8 U.S.C. § 1252, and we dismiss the petition in part
and deny it in part.
1. The BIA properly upheld the IJ’s denial of asylum. The BIA found
that Gavarrete Navarro did not establish changed circumstances in Honduras that
would render his asylum application timely filed, see 8 C.F.R. 1208.4(a), where
he applied roughly three years after losing temporary protected status. We
discern no error in that conclusion. We lack jurisdiction to consider Gavarrete
Navarro’s argument that he is entitled to have his asylum application treated as
timely pursuant to Mendez Rojas v. Johnson, 305 F. Supp. 3d 1176, 1188 (W.D.
Wash. 2018), because he failed to first present that argument to the BIA. See
Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004).
1 Gavarrete Navarro presents no argument challenging the BIA’s dismissal
of his appeal from the IJ’s denial of cancellation of removal based on extreme
hardship to his U.S. citizen daughter.
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2. The BIA did not err in affirming the IJ’s denial of withholding of
removal pursuant to Section 241(b)(3) of the INA. See 8 U.S.C. § 1231(b)(3).
To be eligible for such relief, an applicant must show that it is more likely than
not that, upon deportation, he would be subject to persecution based on one of the
statutorily specified grounds. Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir.
2021). The IJ found that Gavarrete Navarro did not show that any future
persecution would be on account of a protected ground. We agree with the BIA
that Gavarrete Navarro failed to meaningfully identify any error in the IJ’s
analysis. The BIA did not err by declining to consider arguments regarding
protected grounds that Gavarrete Navarro presented for the first time on appeal.
See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per curiam).
3. To be eligible for CAT relief, an applicant must show that he more
likely than not will be tortured upon removal, and that the torture will occur “with
the consent or acquiescence of a public official[.]” Xochihua-Jaimes v. Barr, 962
F.3d 1175, 1183 (9th Cir. 2020). The IJ found, and the BIA agreed, that Gavarrete
Navarro did not show that he more likely than not would be tortured in Honduras.
The record does not compel a contrary finding.
4. The BIA did not abuse its discretion by denying Gavarrete Navarro’s
motion to remand the proceedings to the IJ so that Gavarrete Navarro could
pursue lawful permanent resident status. A motion to remand “for the purpose of
submitting an application for relief must be accompanied by the appropriate
application for relief and all supporting documentation.” See 8 C.F.R.
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§ 1003.2(c)(1) (stating requirements for motions to reopen); Ramirez-Alejandre
v. Ashcroft, 319 F.3d 365, 382 (9th Cir. 2003) (en banc) (“Under BIA procedure,
a motion to remand must meet all the requirements of a motion to reopen and the
two are treated the same.”). The record contains no evidence that Gavarrete
Navarro ever provided the BIA with an approved I-130 petition or a completed I-
485 application. Cf. Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008).
PETITION DISMISSED IN PART AND DENIED IN PART.2
2 We DENY as moot Gavarrete Navarro’s motion to stay removal (Dkt.
No. 2).
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