MARCO LOPEZ-ORTIZ V. JEFFERSON SESSIONS, No. 14-73459 (9th Cir. 2017)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 19 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT MARCO LOPEZ-ORTIZ, No. Petitioner, U.S. COURT OF APPEALS 14-73459 Agency No. A077-763-803 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Immigration Court Submitted October 11, 2017** San Francisco, California Before: O’SCANNLAIN and BYBEE, Circuit Judges, and MAHAN,*** District Judge. Marco Lopez-Ortiz appeals an immigration judge’s negative reasonable fear determination. Because the facts are known to the parties, we repeat them only as * 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 James C. Mahan, United States District Judge for the District of Nevada, sitting by designation. necessary to explain our decision. I We lack jurisdiction to hear Lopez-Ortiz’s challenge to his underlying expedited removal order.1 Ninth Circuit precedent makes clear that our jurisdiction to entertain collateral attacks on expedited removal orders is quite limited. See Pena v. Lynch, 815 F.3d 452, 455–56 (9th Cir. 2015). Pena forecloses jurisdiction here, because Lopez-Ortiz does not allege constitutional violations in his expedited removal order, he is not the subject of criminal charges, and he does not seek a writ of habeas corpus. See id. Lopez-Ortiz’s reliance on Smith v. U.S. Customs & Border Protection, 741 F.3d 1016 (9th Cir. 2014), is unavailing, because Smith was plainly limited to the habeas context. Lopez-Ortiz’s reliance on criminal cases is similarly unpersuasive, because the reinstatement of a prior removal order “imposes no . . . criminal penalties.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir. 2007). II Lopez-Ortiz is ineligible to apply for asylum during his reinstatement proceedings. See Perez-Guzman v. Lynch, 835 F.3d 1066, 1082 (9th Cir. 2016). 1 Because we lack jurisdiction over Lopez-Ortiz’s underlying expedited removal order, the documents with which he seeks to supplement the record are irrelevant. Therefore, Lopez-Ortiz’s Motion to Supplement the Certified Administrative Record is DENIED. 2 III The immigration judge (IJ) did not err in determining that Lopez-Ortiz lacks a reasonable fear of persecution or torture upon removal to Mexico. We review an IJ’s negative reasonable fear determination for substantial evidence. AndradeGarcia v. Lynch, 828 F.3d 829, 833–36 (9th Cir. 2016). As an initial matter, the IJ’s opinion was fairly brief. Lopez-Ortiz argues that this opinion is mere boilerplate devoid of individualized review, and therefore cannot be sustained under Ghaly v. Immigration and Naturalization Service, 58 F.3d 1425, 1430 (9th Cir. 1995). But Lopez-Ortiz raises this objection to the form of the IJ’s decision for the first time in his reply brief, and so he has waived this argument. Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). Thus, we move to the substance of the IJ decision. A The IJ did not err in finding that Lopez-Ortiz lacks a reasonable fear of persecution. Lopez-Ortiz is correct that (1) a finding of past persecution on account of a protected ground mandates a rebuttable presumption of future persecution, and (2) a finding of government persecution mandates a rebuttable presumption that internal relocation is unreasonable. 8 C.F.R. § 1208.16(b). But even if we assume that the IJ agreed with the asylum officer’s decision that Lopez-Ortiz was subject to past persecution by government agents on account of a protected ground, there 3 is substantial evidence in the record to rebut both presumptions. Lopez-Ortiz moved to a nearby town after he was robbed by the corrupt police, and he lived there safely for nine years before entering the United States. The record makes clear, then, that Lopez-Ortiz could reasonably relocate to avoid persecution, because he has already successfully relocated to avoid persecution. In addition, Lopez-Ortiz concedes that he does not know if the corrupt police officers still work in the area, twenty-seven years after the robbery. Thus, there is substantial evidence in the record that Lopez-Ortiz would not be subject to future persecution upon removal to Mexico. B For the same reasons, the IJ did not err in finding that Lopez-Ortiz lacks a reasonable fear of torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (indicating that the definition of torture is merely a subset of what qualifies as persecution). IV The petition is DENIED IN PART AND DISMISSED IN PART. 4
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