Juan Manuel Bernabe-Montero v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN MANUEL BERNABE-MONTERO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-227
Agency No. A213-020-436
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2023**
Pasadena, California
Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges.
Juan Manuel Bernabe-Montero, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal
from an Immigration Judge’s (IJ) order denying his applications for cancellation
of removal, asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). Bernabe-Montero also petitions for review of the BIA’s
* 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
MAR 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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rejection of his claim that the IJ violated his due process rights by denying his
motion for a continuance.
We have jurisdiction under 8 U.S.C. § 1252. When, as here, the BIA cites
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and expressly adopts
and affirms the IJ’s decision, we “look through the BIA’s decision and treat the
IJ’s decision as the final agency decision for the purposes of [the] appeal.”
Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). However, where the
BIA conducts its own analysis of an issue, we limit our review to the BIA’s
decision. See Perez-Portillo v. Garland, 56 F.4th 788, 792 (9th Cir. 2022).
Questions of law, including due process claims, are reviewed de novo.
Gonzaga-Ortega v. Holder, 736 F.3d 795, 800 (9th Cir. 2013). Factual findings
are reviewed for substantial evidence, meaning that the agency’s findings are
“conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” See Villavicencio v. Sessions, 904 F.3d 658, 663–64 (9th Cir.
2018) (as amended). We dismiss in part and deny in part the petition for review.
1. We lack jurisdiction to review “the merits of a discretionary decision to
deny cancellation of removal.” Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir.
2012); 8 U.S.C. § 1252(a)(2)(B)(i); 8 U.S.C. § 1229b. We therefore do not
review the merits of the IJ’s cancellation decision.
2. Bernabe-Montero argues that the IJ’s denial of his motion to continue
violated his due process rights by preventing him from reasonably presenting
his case. See Vilchez, 682 F.3d at 1198 (describing our jurisdiction to consider

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due process claims related to cancellation decisions). He posits that the lack of a
continuance prevented him from marrying his fiancé before the merits hearing
and thus prevented his fiancé from counting as a qualifying relative for the
purposes of the IJ’s hardship determination. The BIA, issuing its decision over
six months after the IJ’s decision, noted that Bernabe-Montero had not yet
married his fiancé and concluded, on this basis, that Bernabe-Montero’s fiancé
would not have become a qualifying relative, even if the IJ had granted the
continuance motion.
We will reverse the BIA’s decision on due process grounds if (i) the
proceeding before the IJ was so unfair that it prevented Bernabe-Montero from
reasonably presenting his case, and (ii) this violation may have affected the
outcome of the proceeding. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–
21 (9th Cir. 2006). Given that Bernabe-Montero had not married his fiancé by
the time of the BIA’s decision, we find no error in its holding that the IJ’s denial
of Bernabe-Montero’s motion did not prevent him from reasonably presenting
his case. The BIA, moreover, correctly held that the denial did not affect the
outcome of the proceeding, because Bernabe-Montero (i) did not substantiate
the seriousness of his fiancé’s medical conditions, (ii) did not allege his fiancé
would lose access to medical care upon his removal, and (iii) testified that his
fiancé was being supported by her daughter during his detention.
3. The IJ held that Bernabe-Montero’s asylum application, which was
filed “nearly twenty years after his last arrival in the United States,” was

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untimely. Bernabe-Montero argues that changed circumstances justify his late
application. See Husyev v. Mukasey, 528 F.3d 1172, 1178 (9th Cir. 2008)
(describing our jurisdiction to consider questions of law related to timeliness
determinations); 8 U.S.C. § 1158(a)(2)(D).
The IJ correctly held that neither (i) Bernabe-Montero’s allegation of
“recent increases in crime and cartel-related violence in Mexico,” nor (ii) the
disappearance of Bernabe-Montero’s cousin in 2018, constituted changed
circumstances that would justify the late filing of Bernabe-Montero’s asylum
application. Bernabe-Montero did not submit evidence that crime and cartel-
related violence had increased since he last left Mexico, and there is nothing in
the record concerning the cause of his cousin’s disappearance besides Bernabe-
Montero’s speculation that cartels were involved.
4. Substantial evidence supports the IJ’s finding that Bernabe-Montero
failed to show he would be harmed on account of membership in his family for
the purposes of his application for withholding of removal. See Garcia v.
Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021) (stating that a withholding of
removal applicant must prove that a protected ground is a reason for future
persecution). Bernabe-Montero fears returning to Mexico because his cousin
recently disappeared and he believes she may have been targeted by the drug
cartels in his hometown. However, “[t]he record does not demonstrate who was
responsible for his cousin’s disappearance, or that she was harmed on account
of her family group membership, much less that cartel members are actively

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searching for [Bernabe-Montero] in Mexico.”
5. Bernabe-Montero’s CAT claim fails for substantially the same reason.
See 8 C.F.R. § 1208.16(c)(2) (a CAT applicant must “establish that it is more
likely than not that he . . . would be tortured if removed to the proposed country
of removal.”). While he also supports his CAT claim with country-conditions
evidence, this evidence does not establish that Bernabe-Montero is any more
likely to be a victim of violence than the “populace as a whole in Mexico.”
Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th Cir. 2016).
PETITION DISMISSED IN PART AND DENIED IN PART.1
1 We also deny as moot Bernabe-Montero’s motion for a stay of removal
pending appeal.

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