Jose Marco Antonio Garibaldi Garibay v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MARCO ANTONIO GARIBALDI
GARIBAY,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73764
Agency No. A096-367-677
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2022**
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and SESSIONS,*** District Judge.
* 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 William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
DEC 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
Jose Marco Antonio Garibaldi Garibay petitions for review of the Board of
Immigration Appeals’ (“BIA”) final removal order affirming an Immigration
Judge’s denial of his motion to terminate removal proceedings and his application
for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We deny the petition. Because the parties are familiar with the
facts, we need not recount them here.
Jurisdiction. Garibaldi Garibay argues that the omission of the date and time
from his initial Notice to Appear prevented jurisdiction over his removal
proceedings from vesting with the Immigration Judge. This argument is foreclosed
by our holding in United States v. Bastide-Hernandez, 39 F.4th 1187, 1192–93 (9th
Cir. 2022) (en banc), that failure to include the date and time of a hearing in an
NTA does not deprive the immigration court of jurisdiction.
Asylum and Withholding of Removal. The BIA did not err in finding that
Garibaldi Garibay failed to establish eligibility for asylum or withholding of
removal. Substantial evidence supports the BIA’s conclusion that Garibaldi
Garibay’s membership in a particular social group was neither “one central reason”
nor “a reason” for the harm he suffered or fears. Barajas-Romero v. Lynch, 846
F.3d 351, 356–58 (9th Cir. 2017). Instead, substantial evidence supports that
Garibaldi Garibay was a target of “indiscriminate violence” and generalized
criminal activity. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010)

-- 2 of 5 --

3
(citing Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001) (“Asylum is not available
to victims of indiscriminate violence, unless they are singled out on account of a
protected ground.”)).
Garibaldi Garibay’s evidence of persecution—that armed men approached
him and his friends collectively for recruitment into a criminal organization, that
his mother had been anonymously extorted for money, and that his uncle was
forced to work for a criminal organization after being kidnapped and tortured—
does not establish that Garibaldi Garibay was or will be singled out for recruitment
by or retaliation from a criminal organization.
Nor did the BIA err in finding that Garibaldi Garibay’s political opinion did
not motivate the criminal organizations’ actions against him and his family. No
nexus exists between forced recruitment or violence and a political opinion where
there is no evidence the persecutor believed political opinion motivated the
applicant’s refusal to join them, and no evidence that the organization would have
harmed them for having that opinion. Compare Gonzales-Neyra v. I.N.S., 122 F.3d
1293, 1296 (9th Cir. 1997) (finding nexus to a political opinion where applicant
presented evidence “that he had a political opinion, that he expressed it to his
persecutors, and that they threatened him only after he expressed his opinion”),
with Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (finding no nexus where
applicant failed to present evidence, other than his refusal to join the gang, that he

-- 3 of 5 --

4
was politically or ideologically opposed to gangs or that the gang imputed any
particular belief to him), abrogated in part on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc).
Garibaldi Garibay did not communicate any political opposition or neutral
political opinion to either criminal organization and did not express an “outspoken
political opinion.” Borja v. I.N.S., 175 F.3d 732, 736 (9th Cir. 1999). Thus, the
BIA’s conclusion that the criminal organizations were not motivated by a protected
ground is supported by substantial evidence. As the BIA did not err when it
concluded that Garibaldi Garibay is a victim of generalized conditions of upheaval
in Mexico, the BIA did not err in finding that Garibaldi Garibay failed to establish
his eligibility for asylum or withholding of removal.
Due Process. The Immigration Judge did not deprive Garibaldi Garibay of
due process when it determined that the telephonic testimony of Garibaldi
Garibay’s uncle, whose declaration was in the record, was unnecessary. Garibaldi
Garibay cannot “demonstrate[] prejudice . . . by the alleged violation.” Pangilinan
v. Holder, 568 F.3d 708, 709 (9th Cir. 2009) (quoting Ibarra-Flores v. Gonzales,
439 F.3d 614, 620–21 (9th Cir. 2006)). As the decision of the BIA turned on its
nexus analysis, the proposed testimony concerning the severity of the uncle’s
injuries would have no bearing the denial of asylum or withholding of removal.
CAT Protection. Finally, the record does not compel a finding that Garibaldi

-- 4 of 5 --

5
Garibay is more likely than not to be tortured by or at the acquiescence of the
Mexican government. The BIA applied the correct standard of review—the clearly
erroneous standard—to the factual determination of whether Garibaldi Garibay is
more likely than not to be tortured if removed. See Guerra v. Barr, 974 F.3d 909,
915 (9th Cir. 2020). Garibaldi Garibay failed to produce compelling evidence that
he faces a “particularized threat” of torture. Dhital v. Mukasey, 532 F.3d 1044,
1051 (9th Cir. 2008) (emphasis in original). Thus, the BIA did not err in denying
Garibaldi Garibay protection under CAT.
The Court declines to consider any additional issues Garibaldi Garibay
raised that did not form the basis of the BIA’s opinion. Guerra, 974 F.3d at 911
(noting that this Court’s “review is limited to the BIA’s decision, except to the
extent the IJ’s opinion is expressly adopted”).
PETITION DENIED.

-- 5 of 5 --