Ernesto Estrada-Ceron v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO ESTRADA-CERON,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1692
Agency No.
A208-560-516
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 27, 2024**
Pasadena, California
Before: RAWLINSON, LEE, and BRESS, Circuit Judges.
Ernesto Estrada-Ceron (Estrada-Ceron), a native and citizen of Mexico,
petitions for review of a final order by the Board of Immigration Appeals (BIA)
dismissing his appeal of an Immigration Judge’s (IJ) decision denying asylum,
* 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
APR 5 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withholding of removal, and protection under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252. We dismiss in part and deny
in part the petition for review.
“We review questions of law de novo and the agency’s factual findings for
substantial evidence.” Rudnitskyy v. Garland, 82 F.4th 742, 746 (9th Cir. 2023)
(citation and internal quotation marks omitted). Competency determinations are
reviewed for an abuse of discretion. See Calderon-Rodriguez v. Sessions, 878 F.3d
1179, 1184 (9th Cir. 2018).
1. The BIA did not abuse its discretion in concluding that Estrada-Ceron
was competent. The IJ confirmed that Estrada-Ceron was oriented as to time,
place, and the purpose of the hearing. See id. at 1182 (stating that the test for
determining competency “to participate in immigration proceedings is whether [the
petitioner] has a rational and factual understanding of the nature and object of the
proceedings, can consult with the attorney . . . , and has a reasonable opportunity to
examine and present evidence and cross-examine witnesses”) (citation omitted);
see also Salgado v. Sessions, 889 F.3d 982, 988 (9th Cir. 2018) (“[An] IJ [is] not
required to obtain a mental health evaluation to determine . . . competen[cy].”)
(citation omitted).
2. Estrada-Ceron filed his asylum application nine years after turning 18 in
the United States, which far exceeds the one-year deadline. See 8 U.S.C.

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§ 1158(a)(2)(B) & (E). Estrada-Ceron does not challenge the untimeliness
determination. We therefore lack jurisdiction to review any challenge to the denial
of asylum. See Budiono v. Lynch, 837 F.3d 1042, 1047 n.4 (9th Cir. 2016).
3. The denial of withholding of removal is supported by substantial
evidence. Estrada-Ceron’s proposed particular social group of “persons who have
previously been sexually abused by parents and were not protected by the Mexican
government” is not cognizable. Estrada-Ceron failed to present evidence that
Mexican society perceives his proposed particular social group as socially distinct.
See Gutierrez-Alm v. Garland, 62 F.4th 1186, 1199 (9th Cir. 2023).
4. Substantial evidence supports the BIA’s finding that Estrada-Ceron
would not be tortured with the acquiescence of the Mexican government. Estrada-
Ceron does not point to evidence that the Mexican government would acquiesce in
his torture, relying only on his testimony that his father was able to sexually assault
him and escape jail. See Hernandez v. Garland, 52 F.4th 757, 770 (9th Cir. 2022)
(commenting that “a general ineffectiveness on the government’s part to
investigate and prevent crime will not” suffice to establish government
acquiescence to support CAT relief) (citations omitted).
PETITION DISMISSED IN PART; DENIED IN PART.1
1 Petitioner’s motion to stay removal, Dkt. 2, is denied. The temporary stay of
removal shall remain in place until the mandate issues.

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