Unreported / Non-Citable
Background
Angel Torres Palominos, a native and citizen of Mexico, petitioned the Ninth Circuit to review a Board of Immigration Appeals decision dismissing his appeal from an immigration judge's order removing him to Mexico. The panel, Circuit Judges Forrest and Tung and District Judge Bastian sitting by designation, decided the case on submission without oral argument. The disposition is an unpublished memorandum, not precedent except as provided by Ninth Circuit Rule 36-3.
Torres Palominos applied for asylum more than a year after entering the United States and invoked the changed-circumstances exception, pointing to increased violence in Mexico, harm facing relatives and a friend's recruitment into a criminal gang. He also sought withholding of removal based on a claimed politically neutral position and proposed social groups, including Chicano males aged 18–45 returning after many years in the United States and Mexican nationals who resist cartel violence. He further sought Convention Against Torture protection and cancellation of removal, and argued the immigration court lacked jurisdiction because his Notice to Appear omitted the date and time of the first hearing.
The Court’s Holding
The court denied the petition in full. It reviewed the agency's changed-circumstances determination, a mixed question of law and fact, with deference and found substantial evidence that the asylum application was time barred. Although he testified that he had always feared returning and showed that conditions had not improved, the agency properly found this insufficient to show a substantial change in conditions excusing late filing.
On withholding of removal, the court held that he had not shown a likelihood of persecution based on a protected ground. The agency concluded that his proposed groups were not cognizable because he had not shown particularity or social distinction in Mexican society. He also had not shown that his other proposed groups were cognizable or that he was harmed because of membership in them, so the record did not compel a contrary conclusion. On the Convention Against Torture, he presented no evidence that torture was more likely than not. His reliance on generalized statistics and harm to family members did not establish a particularized risk, and there was no evidence of past torture, which answered his argument that the immigration judge ignored aggregate risk.
On cancellation of removal, the agency found that his children would keep receiving needed medical care and educational assistance in the United States, and that earning less in Mexico was not hardship beyond what ordinarily accompanies removal. The court noted that he did not dispute failing to show the required hardship, a necessary predicate, so his complaint that the immigration judge skipped other statutory factors did not help him. Finally, relying on the en banc decision in United States v. Bastide-Hernandez, the court held that a Notice to Appear lacking hearing time and date does not strip the immigration court of subject matter jurisdiction; Pereira and Niz-Chavez concerned the stop-time rule. The petition was denied and the temporary stay was terminated.
Key Takeaways
- Evidence that country conditions remain dangerous, or that relatives or acquaintances have been harmed, did not establish changed circumstances excusing an asylum application filed after the one-year deadline.
- Proposed particular social groups failed for lack of particularity and social distinction, and the petitioner also did not show he was harmed because of membership in any group.
- Convention Against Torture relief requires evidence that torture is more likely than not for the individual petitioner; generalized statistics and family members' experiences were not enough.
- Cancellation of removal requires hardship to qualifying relatives that is out of the ordinary and exceedingly uncommon, and an unchallenged failure on that element ends the claim.
- A Notice to Appear omitting the time and date of the initial hearing does not deprive the immigration court of subject matter jurisdiction under circuit en banc precedent.
Why It Matters
This is an unpublished, non-precedential memorandum, so it binds no one beyond these parties, but it shows how the Ninth Circuit applies deferential substantial-evidence review to the agency's rulings on timeliness, social-group cognizability, torture risk and hardship.
Its treatment of the jurisdictional argument is a reminder that Bastide-Hernandez remains controlling and that the Pereira and Niz-Chavez line is confined to the stop-time rule. Nothing remains pending on the merits; the petition was denied and the temporary stay ended.