Guatemalan citizen with a U.S. immigration. In 2023, Alejandro Tecum Hernandez asked the Ninth Circuit to overturn the Board of Immigration Appeals’ decision denying him:
- Withholding of removal
- Protection under the Convention Against Torture (CAT)
- Cancellation of removal
The Ninth Circuit did not grant relief. It divided its ruling into two parts:
- Withholding of removal — denied.
The court agreed that he had not shown that he was persecuted, or would be persecuted, because of a legally protected characteristic—such as race, religion, nationality, political opinion, or membership in a particular social group. The court characterized the threats or harm as criminal or gang-related conduct motivated by theft or violence, rather than persecution connected to a protected ground.He also argued that the immigration judge had failed to consider a proposed “particular social group.” The court refused to consider that argument because he had not properly raised it before the immigration authorities. This is called failure to exhaust administrative remedies. - CAT protection — denied.
The court agreed that he had not shown it was more likely than not that he would be tortured if returned to Guatemala, or that any torture would occur with the government’s consent or acquiescence. - Cancellation of removal — dismissed for lack of jurisdiction.
Cancellation of removal is largely discretionary. Under federal immigration law, courts generally cannot review the agency’s factual or discretionary decision to deny it. The court said Hernandez had not presented a legally sufficient constitutional or legal question that would allow it to review that decision.
The final result was:
Petition for review denied in part and dismissed in part.
In practical terms, the decision left the immigration authorities’ denial in place. The opinion is also marked “not for publication,” meaning it generally does not serve as binding Ninth Circuit precedent, although it still resolved Hernandez’s case.
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