Zetino v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD M. ZETINO,  No. 08-70390

Petitioner, Agency No.

v.

 A094-175-859

ERIC H. HOLDER JR., Attorney ORDER AND

General, AMENDED

Respondent.

 OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 9, 2009—Pasadena, California

Filed February 18, 2010

Amended August 30, 2010

Before: Cynthia Holcomb Hall and Richard C. Tallman,

Circuit Judges, and David M. Lawson,* District Judge.

Opinion by Judge Tallman

*The Honorable David M. Lawson, United States District Judge for the

Eastern District of Michigan, sitting by designation.

12979

ZETINO v. HOLDER 12981

COUNSEL

Niels W. Frenzen, Esq., (argued), University of Southern Cal-

ifornia Law School Immigration Clinic, Los Angeles, Califor-

nia, for petitioner Zetino.

12982 ZETINO v. HOLDER

Sunah Lee, Esq., (argued), U.S. Department of Justice, Civil

Division/Office of Immigration Litigation, Washington, D.C.,

Ronald E. LeFevre, Esq., Department of Homeland Security,

Office of the District Counsel, Los Angeles, California, for

respondent Attorney General Holder.

ORDER

The opinion filed on February 18, 2010, and reported at

596 F.3d 517, is amended. The amended opinion filed concur-

rently with this order is substituted in its place.

With the filing of the amended opinion, the panel has unan-

imously voted to deny the petition for panel rehearing. Judge

Tallman has voted to deny the petition for rehearing en banc,

and Judges Hall and Lawson so recommend. The full court

has been advised of the petition for rehearing and petition for

rehearing en banc, and no judge of this court has requested a

vote on the petition for rehearing en banc. Fed. R. App. P.

35(f).

The petition for rehearing and the petition for rehearing en

banc are DENIED. No further petitions for rehearing or

rehearing en banc may be filed.

OPINION

TALLMAN, Circuit Judge:

Ronald Zetino (“Zetino”), a native and citizen of El Salva-

dor, petitions for review of a Board of Immigration Appeals

(“BIA”) decision upholding an Immigration Judge’s (“IJ”)

denial of his applications for asylum and withholding of

removal. We deny his challenges on the merits.

ZETINO v. HOLDER 12983

I

Zetino illegally entered the United States on December 5,

1989, at San Ysidro, California. Zetino was detained on May

1, 2001, and placed in removal proceedings on May 15, 2001.

He was charged with removability pursuant to Section

212(a)(6)(A)(i) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in

the United States without being admitted or paroled.

At Zetino’s first removal hearing on May 31, 2001, the IJ

informed him of his right to counsel and right to call wit-

nesses on his behalf. The IJ also provided Zetino with a list

of free legal aid services. Zetino acknowledged those rights,

waived them, admitted to the allegations against him, and

conceded removability. Zetino informed the IJ that he feared

persecution upon return to El Salvador, at which time the IJ

gave him an application for asylum. At a continued removal

hearing on June 11, 2001, Zetino did not submit an applica-

tion for asylum, but instead requested a continuance to find an

attorney. The IJ granted that request, noting that Zetino

claimed to have obtained an attorney who had decided not to

represent him “at the last minute.”

Zetino’s next removal hearing took place on September 27,

2005, after an additional continuance during which he

remained incarcerated. At that hearing, the IJ once again

informed Zetino of his right to counsel, which Zetino

acknowledged. The IJ then granted Zetino yet another contin-

uance to obtain counsel. Zetino finally filed his application for

asylum on October 25, 2005.

Zetino’s hearing on the merits of his asylum application

began on May 14, 2007. Zetino appeared pro se, apparently

unable to obtain counsel in the six years since his first hear-

ing. The IJ took testimony from Zetino, his mother, and his

sister.

12984 ZETINO v. HOLDER

Zetino testified that he was afraid to return to El Salvador

because he had been told that in 1993 six members of his fam-

ily had been killed by gunfighters attempting to steal his

grandfather’s land. Zetino noted that this event took place

after his illegal arrival in the United States and that he only

found out about it through word of mouth. When the IJ asked

him to explain the motive for the murders, Zetino responded,

“Some farmers who supposedly . . . were my grandfather’s

friends and they wanted more land so they could cultivate on

that [sic] and my grandfather did not want to release the land

to them.” Zetino also testified that he feared gang members

would attempt to recruit or harm him. He stated simply,

“There are too many gang members. I don’t think that I will

be able to work there at [inaudible] with ease.”

Zetino’s mother testified that masked gunmen had killed

members of her family for “revenge because of some proper-

ties, some land [sic].” Zetino’s sister testified that she was not

in El Salvador at the time of the alleged killings.

After taking testimony, the IJ rendered an oral decision in

which she determined Zetino had testified credibly but still

failed to demonstrate a well-founded fear of persecution based

on statutorily-protected grounds. The IJ ruled that Zetino

failed to establish a nexus between the murder of his relatives

or gang recruitment and a protected ground such as race, reli-

gion, nationality, membership in a particular social group, or

political opinion. As to the killing of his relatives, the IJ noted

that it “was clearly a personal dispute, if anything, amongst

the ones who wanted to cultivate the land next door . . . . This

is not a basis for asylum or withholding of removal under the

Act.”

On September 6, 2007, Zetino filed a pro se Notice of

Appeal to the BIA stating that he disagreed with the IJ’s deci-

sion that “[he] didn’t prove [his] case.” Zetino’s Notice of

Appeal contained a well-articulated statement of his case. He

argued that his “fear of persecution and torture is based on the

ZETINO v. HOLDER 12985

assassination of [his] family members and relatives by 11

masked gunmen who assassinated them and who are still at

large.” He also stated that he feared “gang members who are

at large, who sell drugs and arms, who also hurt and rob peo-

ple like [him], because [he] also [has] tattoos (none gang-

related) and they would mistake [him] for being a rival gang

member.”

On October 20, 2007, Zetino was transferred from the San

Pedro Detention Complex in Los Angeles, California, to the

South Texas Detention Complex in Pearsall, Texas. On Octo-

ber 23, 2007, the BIA issued a briefing schedule notifying

Zetino of a November 13, 2007, deadline to file an appellate

brief. Zetino properly notified the BIA of his move with a

change of address form on October 31, 2007, and as a result

the BIA granted him a filing extension from his original dead-

line of November 13, 2007, to November 30, 2007. Despite

notice of the extension, Zetino did not file a brief before this

extended deadline.

Five days after missing the filing deadline, on December 5,

2007, Zetino secured the representation of the University of

Southern California Law School Immigration Clinic. On

December 14, 2007, his counsel filed a Motion to Accept Late

Brief and Motion for Extension of Time requesting the BIA

accept a late brief or extend the filing deadline to “accommo-

date student exams and the ensuing winter break.” The BIA

found “the reasons stated by the respondent insufficient for

[it] to accept an untimely brief in [its] exercise of discretion.”

The BIA also denied the extension request “as it was received

after the expiration of the filing deadline.”

Despite Zetino’s failure to properly file an appellate brief,

the BIA considered the merits of his application because he

had sufficiently articulated his challenges to the IJ’s decision

in his Notice of Appeal. The BIA subsequently upheld the IJ’s

determination on the merits. The BIA reasoned that neither

Zetino’s fear of “the eleven unidentified masked gunmen who

12986 ZETINO v. HOLDER

fatally shot his aunt, uncle, and at least three cousins in 1993

and who remain at large” nor his fear of “gang members

[who] might mistake him for a member of a rival gang

because he has tattoos” established a well-founded fear of

persecution “on account of his race, religion, nationality,

membership in a particular social group, or political opinion.”

The BIA supported its conclusion by noting,

It is well-established that an asylum applicant’s fear

of harm resulting from general conditions of vio-

lence and civil unrest affecting the home country’s

populace as a whole does not constitute a “well-

founded fear of persecution” within the meaning of

the Act.

Furthermore, the BIA reasoned that Zetino’s fear of harm by

criminals or gangs did not “establish that he belongs to a ‘par-

ticular social group’ within the meaning of section

101(a)(42)(A) of the Act.” The BIA relied on our decision in

Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007), where we

held that a tattooed alien’s membership in a violent criminal

gang was not “social group” membership for withholding of

removal purposes.

Zetino now timely petitions for review of the BIA’s deci-

sion to reject his untimely brief as well as its decision to

uphold the IJ’s ruling denying his applications for asylum and

withholding of removal.1 He presents three distinct chal-

lenges, two procedural and one substantive.

First, Zetino claims the BIA’s discretionary ruling refusing

to accept his untimely brief or to extend the filing period was

1

In his petition for review, Zetino does not challenge the IJ’s denial of

his application for protection under the United Nations Convention

Against Torture. Accordingly, he has waived any challenge to that deter-

mination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.

1996).

ZETINO v. HOLDER 12987

a violation of his due process rights and an abuse of discre-

tion. We find that the BIA’s denial of the brief in this instance

neither violated Zetino’s due process rights nor constituted an

abuse of discretion.

Second, Zetino claims the IJ violated his due process rights

by failing to develop a factually complete record or advise

him of his right to counsel. This argument is without merit

and is unsupported by the record.

Third, Zetino claims substantial evidence does not support

the BIA’s decision that he failed to demonstrate a nexus

between the harm he allegedly faces upon return to El Salva-

dor and a protected ground such as race, religion, nationality,

membership in a particular social group, or political opinion.

Zetino fears return to El Salvador because in 1993 unidenti-

fied masked gunmen murdered members of his family moti-

vated by a desire to steal his grandfather’s land. Neither that

event nor his fear of gangs bears a nexus to a protected

ground.

Accordingly, we deny the petition for review.

II

Due process challenges to immigration proceedings are

reviewed de novo. Padilla v. Ashcroft, 334 F.3d 921, 923 (9th

Cir. 2003). We review petitions for review of the BIA’s deter-

mination that a petitioner does not qualify for asylum or with-

holding of removal under the highly deferential “substantial

evidence” standard. INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). Under this standard, the petition for review must be

denied if the BIA’s determination is “supported by reason-

able, substantial, and probative evidence on the record consid-

ered as a whole.” Id. The petition for review may be granted

only if the evidence presented “was such that a reasonable

factfinder would have to conclude that the requisite fear of

12988 ZETINO v. HOLDER

persecution existed.” Id. (citing NLRB v. Columbian Enamel-

ing & Stamping Co., 306 U.S. 292, 300 (1939)).

III

Because Zetino filed his application for asylum after the

May 11, 2005, effective date of the REAL ID Act of 2005, we

have jurisdiction under Section 242 of the INA, 8 U.S.C.

§ 1252, as amended by the Act, Pub. L. No. 109-13, Div. B.,

119 Stat. 231 (May 11, 2005).

A

Zetino first challenges the BIA’s rejection of his untimely

brief and refusal to extend the filing period as an abuse of dis-

cretion and a violation of his due process rights. Thus, we are

asked to review four challenges: (1) an abuse of discretion

challenge to the denial of the motion to accept a late brief; (2)

a due process challenge to the denial of the motion to accept

a late brief; (3) an abuse of discretion challenge to the denial

of the motion to extend the filing period; and (4) a due pro-

cess challenge to the denial of the motion to extend the filing

period.

We limit our analysis to Zetino’s challenges to the BIA’s

denial of his motion to accept a late brief. We construe

Zetino’s motion, filed two weeks after the filing deadline, as

solely a motion to accept an untimely brief. An extension of

the filing period was factually impossible because the filing

period had already lapsed. In its order, the BIA noted its

stated policy that a “request for an extension of time to file a

brief must be received at the Board on or before [the] . . . due

date.” A motion to extend the filing period filed after the fil-

ing deadline can only result in the acceptance of an untimely

brief. Accordingly, we treat Zetino’s “Motion to Accept Late

Brief and Motion for Extension of Time” as a motion to

accept an untimely brief.

ZETINO v. HOLDER 12989

i

[1] We can see no abuse of discretion in the BIA’s decision.2

The regulation at issue, 8 C.F.R. § 1003.3(c)(1), states, “In its

discretion, the Board may consider a brief that has been filed

out of time.” Id. (emphasis added). Thus, if a brief has been

filed out of time, the BIA may consider it in its discretion, but

it also may not consider it in its discretion. The BIA abuses

its discretion when it acts “arbitrarily, irrationally, or contrary

to the law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000)

(quoting Eide-Kahayon v. INS, 86 F.3d 147, 149 (9th Cir.

1996)); see also Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th

Cir. 2008) (“The BIA abuses its discretion when it makes an

error of law.”). We have held that “[t]he BIA abuses its dis-

cretion when it fails to comply with its own regulations.” Itur-

ribarria v. INS, 321 F.3d 889, 895 (9th Cir. 2003).

[2] Zetino filed his brief out of time. The applicable regu-

lation indicates that the BIA could have considered his brief

in its discretion. See 8 C.F.R. § 1003.3(c)(1). The BIA was

under no obligation to do so, however, and the BIA certainly

did not act arbitrarily, irrationally, or contrary to the law,

Singh, 213 F.3d at 1052, by exercising its discretion to deny

an untimely brief under a regulation indicating that it could—

or could not—accept the brief, 8 C.F.R. § 1003.3(c)(1). On

this record, there was no abuse of discretion.

ii

[3] We can see no due process violation in the BIA’s deci-

sion. “The Fifth Amendment guarantees due process in depor-

tation proceedings.” Campos-Sanchez v. INS, 164 F.3d 448,

450 (9th Cir. 1999). An alien “must receive a ‘full and fair

hearing,’ in order to meet the requirements of due process.”

2

The government argues we lack jurisdiction to review this discretion-

ary decision. We find this argument unpersuasive in light of Kucana v.

Holder, 130 S. Ct. 827, 831 (2010).

12990 ZETINO v. HOLDER

Id. A petition for review will only be granted on due process

grounds if “(1) the proceeding was so fundamentally unfair

that the alien was prevented from reasonably presenting his

case, and (2) the alien demonstrates prejudice, which means

that the outcome of the proceeding may have been affected by

the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d

614, 620-21 (9th Cir. 2006).

[4] First, Zetino’s proceedings were not so fundamentally

unfair that he was prevented from reasonably presenting his

case. An alien has been provided with due process when he

or she is given an opportunity “to be represented by counsel,

prepare an application for . . . relief, and . . . present testimony

and other evidence in support of the application.” Vargas-

Hernandez v. Gonzales, 497 F.3d 919, 926-27 (9th Cir. 2007).

We have held that a petitioner’s due process rights are vio-

lated if the BIA refuses to accept a late brief where the alien

followed all procedures but the BIA sent the briefing schedule

and transcript to an incorrect address. See Singh, 362 F.3d

1164, 1168-69 (9th Cir. 2004).

In Singh, the petitioner was unable to refute an IJ’s adverse

credibility finding in front of the BIA because he was never

given notice of the briefing schedule. Id. at 1168. Here, not

only was there no adverse credibility finding, but Zetino

received an initial briefing schedule as well as a supplemental

briefing schedule affording him a two week extension at his

Texas detention facility. His failure to timely file a brief by

the date of which he had advance notice was not due to the

actions of the BIA, but rather to his six year delay in securing

counsel.

While Zetino does not claim ineffective assistance of coun-

sel, we have held that a petitioner’s due process rights are not

violated even where the failure to file the brief on time is the

result of the petitioner’s counsel’s mistake. See Rojas-Garcia

v. Ashcroft, 339 F.3d 814, 822 (9th Cir. 2003). Here, Zetino

did not secure his counsel until five days after the expiration

ZETINO v. HOLDER 12991

of the filing deadline. It was quite impossible for his attorney

to timely file his appellate brief. However, even if the errors

of his counsel had contributed to the delay, Zetino’s due pro-

cess claim would still fail.

[5] Unlike both Singh and Rojas-Garcia, Zetino cannot

point to anyone but himself to explain the untimeliness of his

brief. We cannot conclude that by missing the deadline he had

successfully extended he somehow deprived himself of due

process. To hold to the contrary would mean that when the

BIA enforced the previously extended filing deadline known

to the petitioner the proceeding became fundamentally unfair.

Such a holding would be contrary to existing due process

jurisprudence addressing filing deadlines. See, e.g., United

States v. Locke, 471 U.S. 84, 101 (1985) (holding that a filing

deadline under Federal Land Policy and Management Act car-

rying a penalty of an automatic forfeiture of a mining claim

did not violate due process).

[6] Nevertheless, we have held an alien’s due process

rights are violated if the BIA summarily dismisses an appeal

for failing to file a brief but the notice of appeal is sufficient

to put the BIA on notice of the relevant issues on appeal. See

Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753-54 (9th Cir.

2004). In his Notice of Appeal, Zetino made a coherent argu-

ment asking the BIA to reverse the IJ’s determination. He

cited specific evidence regarding his fear of his family’s mur-

derers as well as his fear of gangs. However, the BIA did not

summarily dismiss Zetino’s appeal when his brief was

untimely. Nor did the BIA summarily adopt the decision of

the IJ instead of addressing each of Zetino’s claims. In its

decision, the BIA properly articulated Zetino’s two fears: “He

fears that he could be killed by the eleven unidentified

masked gunmen who fatally shot his aunt, uncle, and at least

three cousins in 1993 and who remain at large. He also fears

members of gangs, who could attempt to recruit him.” The

BIA considered his arguments in turn, and affirmed the IJ’s

decision, holding that Zetino failed to establish a nexus

12992 ZETINO v. HOLDER

between his fears and a protected ground. Thus, it did not pre-

vent Zetino from reasonably presenting his case.

[7] Second, even if rejection of Zetino’s brief could be

considered a violation of his rights, he cannot show prejudice

because the BIA considered all of the facts presented and

applied them to the law. Zetino’s articulation of his two fears

could not have changed to such a degree between his Notice

of Appeal and his brief that the BIA’s decision would have

changed. The BIA’s review, and its rejection of Zetino’s

untimely brief, did not run afoul of the Fifth Amendment’s

Due Process Clause.

B

[8] Zetino’s second argument on appeal is that the IJ vio-

lated his due process rights by failing to develop a factually

complete record or advise him of his right to counsel. This

argument is without merit.

The same standard applies to both this challenge and

Zetino’s due process challenge to the BIA’s rejection of his

untimely brief. See supra at Section III(A)(ii). Zetino was

entitled to a full and fair hearing. See Campos-Sanchez, 164

F.3d at 450. Zetino was not prevented from reasonably pre-

senting his case, nor were the proceedings before the IJ funda-

mentally unfair.

Zetino was advised of his right to counsel at his first

appearance before the IJ on May 31, 2001. The IJ stated,

[N]ow let me explain to you the rights that you will

have in these hearings. First and foremost of those

rights is the right to be represented. The Immigration

Service today is represented by an attorney. You

have the same right. You may be represented by an

attorney or a representative who’s been authorized

and qualified to represent people before the Immi-

ZETINO v. HOLDER 12993

gration Court . . . . If you want to have an attorney

or representative represent you in these proceedings

it must be at no expense to the Government. That

means it is going to be your obligation to contact that

individual.

In the colloquy between Zetino and the IJ, the IJ specifically

advised him of his right to counsel and confirmed that he was

provided with a list of free legal services. The IJ stated, “I’m

going to show you a document. That document is called the

legal aid list, and you . . . should have gotten a copy of this

document when you got notice of today’s hearing. Did you

. . . receive a copy of this document that I’m showing you?”

Zetino answered, “Yes.” Zetino even sought a continuance to

obtain counsel. Zetino had almost six years between his first

appearance and his final merits hearing to obtain counsel.

At the final hearing, Zetino called witnesses but chose not

to question them. Zetino argues that he was not aware of his

right to question his witnesses. However, the IJ specifically

explained this right to him. When Zetino testified for himself,

and when he chose not to question his witnesses, the IJ suffi-

ciently developed the record, soliciting responses to several

questions. First he asked, “Why do you fear returning to the

country of El Salvador?” Then, “Any other reason why you

fear [sic]?” Finally, “Do you know why they are killed or

what the motivation was [sic]?”

The lawyer for the Department of Homeland Security also

developed the record, asking Zetino and his family members

numerous questions. The attorney began, “Why do you think

they will harm you in particular?” Then, “Have you ever had

any family members killed in El Salvador?” “[D]o you know

who killed them?” ”Do you know why this murder took place

or what the motive was?” “[W]ere you hurt at all while you

were in El Salvador?” Finally, “Do you think your son will be

harmed if he returned to El Salvador?”

12994 ZETINO v. HOLDER

The IJ advised Zetino of his procedural rights and devel-

oped a thorough factual record. As a result, we find that the

proceeding was not so fundamentally unfair that Zetino was

prevented from reasonably presenting his case. His due pro-

cess rights were not violated.

C

Finally, Zetino argues that substantial evidence does not

support the BIA’s decision affirming the IJ’s denial of his

applications for asylum and withholding of removal. Under

the substantial evidence standard, the petition for review must

be denied if the BIA’s determination was “supported by rea-

sonable, substantial, and probative evidence on the record

considered as a whole.” Elias-Zacarias, 502 U.S. at 481.

Zetino bears the burden of proving that he is eligible for asy-

lum or withholding of removal. See 8 C.F.R. §§ 1208.13,

1208.16; Berroteran-Melendez v. INS, 955 F.2d 1251,

1255-56 (9th Cir. 1992).

To be eligible for asylum, Zetino must demonstrate that he

can qualify as a “refugee,” meaning he is unable or unwilling

to return to his country of origin “because of persecution or

a well-founded fear of persecution on account of race, reli-

gion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42). To be eligible for

withholding of removal, Zetino must demonstrate that his

“life or freedom would be threatened in [his home] country

because of [his] race, religion, nationality, membership in a

particular social group, or political opinion.” Id. § 1231(b)(3).

The REAL ID Act of 2005 places an additional burden on

Zetino to demonstrate that one of the five protected grounds

will be at least one central reason for his persecution. See id.

§ 1158(b)(1)(B)(i).

Zetino testified that he was fearful of returning to El Salva-

dor because, in 1993, bandits attempting to steal his grandfa-

ther’s farm had murdered his family members. Zetino did not

ZETINO v. HOLDER 12995

present evidence that the bandits targeted his family on

account of a protected ground such as their race, religion,

nationality, membership in a particular social group, or politi-

cal opinions. Rather, he testified that the farm was on fertile

land, and thus valuable. Zetino implied that the only motiva-

tion for the murders was the land itself. He testified that the

attackers “were insisting on the lands and [his] grandfather

did not want to get rid of the land.” Zetino also testified that

he was afraid of gang violence because he had tattoos that

gang members might mistake as a sign of membership in a

rival gang.

[9] An alien’s desire to be free from harassment by crimi-

nals motivated by theft or random violence by gang members

bears no nexus to a protected ground. See id. §§ 1231(b)(3),

1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th

Cir. 2004) (holding that random criminal acts bore no nexus

to a protected ground). Accordingly, the BIA properly ruled

that Zetino did not meet his burden of proving that the poten-

tial harm he would suffer in El Salvador was “on account of”

a protected ground such as “race, religion, nationality, mem-

bership in a particular social group, or political opinion.” Gor-

mley, 364 F.3d at 1176. Because the BIA’s determination is

supported by reasonable, substantial, and probative evidence

in the record considered as a whole, the petition for review is

denied.

IV

There was no abuse of discretion, Zetino’s due process

rights were not violated, and substantial evidence supports the

BIA’s decision that Zetino did not demonstrate a nexus

between the harm he fears and a protected ground. The peti-

tion for review is denied.

PETITION DENIED.