United States v. Sanchez-Merino

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 24-3091 GURKIRAT SINGH, Petitioner, v. PAMELA J. BONDI, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A216-183-486 ____________________ ARGUED APRIL 14, 2025 — DECIDED JUNE 23, 2025 ____________________ Before BRENNAN, ST. EVE, and LEE, Circuit Judges. ST. EVE, Circuit Judge. Gurkirat Singh, a citizen of India, fled his home in Punjab for the United States after being beaten and threatened for his political activities. Upon his ar- rival, Singh applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied Singh’s requests for relief on multiple grounds, including because Singh could 2 No. 24-3091 reasonably relocate within India to avoid persecution. The Board of Immigration Appeals (the “Board”) affirmed. Be- cause substantial evidence supports the IJ and Board’s reloca- tion determination, we deny Singh’s petition for review. I. Background Petitioner Gurkirat Singh is an Indian national and a mem- ber of the Sikh ethnoreligious group. While residing in his home state of Punjab, Singh joined a Sikh separatist party, commonly known as the Mann Party. His political participa- tion rapidly attracted the attention of members of the compet- ing Congress Party, who approached Singh and told him that it “would be good for him” to switch parties. Singh was un- swayed. A year later, Singh had a more serious run-in with the Congress Party. While hanging up flyers for a Mann Party- sponsored blood donation event, a small group of men con- fronted Singh and beat him with baseball bats and hockey sticks for ten to twelve minutes. The men reminded Singh that they had told him to join the Congress Party. Singh attempted to report the attack to the local police, but they refused to ac- cept his report and advised him that he ought to join the Con- gress Party. Congress Party members beat Singh for a second time a few months later. His attackers also threatened him, warning: “we told you to quit you [sic] party and join our party, but this time we will kill you, we will take your life.” The beating ended when Singh’s cries drew the attention of nearby resi- dents. Again, local police refused to investigate, instead in- structing Singh to join the Congress Party. No. 24-3091 3 Following this second attack, Singh left India for the United States, entering the country without authorization or inspection. Within a month of his arrival, the Government commenced removal proceedings against him. Singh con- ceded his inadmissibility but filed an application for asylum, withholding of removal, and protection under the CAT. At an Immigration Court hearing, Singh testified to the above facts. The IJ found his testimony credible but denied his applications because he had not suffered persecution, would not face a “substantial risk” of torture if deported, and could relocate to safety within India. Expecting Singh to internally relocate was reasonable, the IJ elaborated, because “he is a twenty-five-year-old male in good health” and he “was able to relocate to the United States, a predominately English- speaking nation, and maintain a livelihood.” Singh appealed and the Board affirmed the IJ’s decision pursuant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), explaining that it discerned no clear error in the IJ’s relocation or past persecu- tion findings. II. Discussion Singh now petitions our court for review. He presses three principal arguments: (1) the Board improperly deferred to the IJ when deciding his appeal, (2) the IJ and Board erred by finding he could reasonably relocate to safety within India, and (3) the IJ and Board erred by finding that he had not suf- fered past persecution. We reach only Singh’s first two con- tentions, as they resolve the petition. A. Scope of the Board’s Review We begin with Singh’s charge that the Board examined the IJ’s decision under an erroneous standard of review. Whether 4 No. 24-3091 the Board applied the correct standard of review is a legal question we consider de novo. F.J.A.P. v. Garland, 94 F.4th 620, 638 (7th Cir. 2024). Board precedent mandates that the Board apply a dual review standard for mixed questions of law and fact. See Matter of R-A-F, 27 I. & N. Dec. 778, 779–80 (A.G. 2020). So

DLD-156 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ Nos. 25-1426 & 25-1427 ___________ ERIC BARTOLI, Appellant v. DIRECTOR FEDERAL BUREAU OF PRISONS; WARDEN LORETTO FCI ___________ ERIC BARTOLI, Appellant v. WARDEN LORETTO FCI ____________________________________ On Appeals from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action Nos. 3:23-cv-00204 & 3:23-cv-00057) Magistrate Judge: Honorable Patricia L. Dodge ____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 22, 2025 Before: RESTREPO, FREEMAN, and NYGAARD, Circuit Judges (Opinion filed: June 10, 2025) _________ OPINION * * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not  _________ PER CURIAM Pro se Appellant Eric Bartoli appeals from District Court orders dismissing his two petitions for writ of habeas corpus that he filed pursuant to 28 U.S.C. § 2241. We will affirm. I Bartoli fled to Peru after a grand jury indicted him for crimes related to his running a Ponzi scheme. Years later, he was arrested and extradited to face those charges in the United States District Court for the Northern District of Ohio. He pled guilty in that Court to charges related to that Ponzi scheme. Bartoli received a sentence of 20 years’ imprisonment and was ordered to pay $42 million in restitution. Bartoli’s direct appeal proved unsuccessful. See United States v. Bartoli, 728 F. App’x 424 (6th Cir. 2018), cert. denied, Bartoli v. United States, 587 U.S. 925 (2019). Bartoli then sought collateral relief by filing a motion pursuant to 28 U.S.C § 2255 See United States v. Bartoli, C.A. No. 23-3983, 2024 WL 4987352, at *1-2 (6th Cir. Dec. 5, 2024) (discussing Bartoli’s collateral proceedings). While Bartoli’s § 2255 proceedings were pending, he filed two § 2241 habeas corpus petitions in the Western District of Pennsylvania (where he was incarcerated) in April 2023 and September 2023. In his April 2023 petition, Bartoli argued that his extradition to the United States from Peru constitute binding precedent. 2 prior to his conviction was illegal and violated the Ex Post Facto Clause, and that trial counsel’s failure to raise this issue constituted ineffective assistance. In his September 2023 petition, Bartoli challenged the validity of his sentence pursuant to the Double Jeopardy and Due Process Clauses as well as the Eighth Amendment. On February 25, 2025, the District Court 1 dismissed both petitions for lack of jurisdiction. Bartoli appealed. This Court notified the parties that these appeals, which have since been consolidated, might be subject to summary action. Appellees filed responses to that notification. Bartoli did not. II We have jurisdiction under 28 U.S.C. § 1291. In reviewing the District Court’s dismissals of Bartoli’s § 2241 habeas corpus petitions, we exercise plenary review over its legal conclusions and review findings of fact for clear error. See O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam). We may summarily affirm the District Court’s decisions if the appeals fail to present a substantial question. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6; see also Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). III Section 2241 gives a District Court jurisdiction over “the petition of a federal prisoner who is [attacking] not the validity but the execution of his sentence.” Cardona v. 1 The parties consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1) in both cases. 3 Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012). Here, however, Bartoli challeng

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEJANDRO ROSAS MORLET, No. 24-1735 Agency No. Petitioner, A215-881-567 v. MEMORANDUM* PAMELA BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 5, 2025** San Francisco, California Before: CALLAHAN, BADE, and KOH, Circuit Judges. Alejandro Rosas Morlet, a citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing an appeal from an order by an immigration judge (“IJ”) denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the BIA * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel previously granted the parties’ joint motion to submit this matter without oral argument. See Fed. R. App. P. 34(a)(2)(f). adopts and affirms the decision of the IJ and provides additional reasoning, we review both decisions. See Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). We deny the petition. The agency determined that Rosas Morlet was not eligible for cancellation of removal because he did not establish that his removal “would result in exceptional and extremely unusual hardship” to his U.S. citizen children under 8 U.S.C. § 1229b(b)(1)(D). We have jurisdiction to review this determination as a mixed question of fact and law, but because “this mixed question is primarily factual,” our “review is deferential.” Wilkinson v. Garland, 601 U.S. 209, 225 (2024).1 The agency’s findings of fact underlying this determination—“[f]or instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides”—are unreviewable. Id. To establish an “exceptional and extremely unusual hardship,” a petitioner “must prove that his citizen relatives would suffer hardship substantially beyond that which would ordinarily be expected to result from” his removal. Chete Juarez v. Ashcroft, 376 F.3d 944, 949 n.3 (9th Cir. 2004) (internal quotation marks and 1 While Wilkinson did not define the “deferential” review required for review of “exceptional and extremely unusual hardship” determinations, 601 U.S. at 225, we recently held that “substantial evidence” review applies, see Gonzalez-Juarez v. Bondi, No. 21-927, slip op. at 11 (9th Cir.). No matter what “deferential” review applies, we would deny the petition. 2 24-1735 citation omitted). Rosas Morlet argues that the agency failed to consider the possible future progression of his daughter’s hypothyroidism and improperly weighed the evidence as to Rosas Morlet’s financial and emotional support for his children. We disagree. The agency acknowledged that Rosas Morlet’s daughter suffers from hypothyroidism, that Rosas Morlet’s children rely upon him financially, and that Rosas Morlet’s removal to Mexico would cause his children emotional hardship. See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th Cir. 2003) (explaining the agency must consider “the ages, health, and circumstances of qualifying relatives” (internal quotation marks and footnote omitted)). The agency also found that Rosas Morlet’s daughter would continue to receive medical treatment in Arizona if Rosas Morlet were removed to Mexico, so did indeed consider the possible future progression of the daughter’s medical condition. The agency ultimately determined that although Rosas Morlet’s removal would impact his children financially and emotionally, those impacts were not “beyond that which would ordinarily be expected to result from” his removal. Chete Juarez, 376 F.3d at 949 n.3 (citation omitted).2 Given the “deferential” standard of review, 2 In a single sentence, Rosas Morlet also argues that “exceptional and extremely unusual hardship . . . is unconstitutionally vague and is extremely subjective.” Because Rosas Morlet does not develop this argument further, we need not address this bare assertion. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We 3 24-1735 Wil

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MIGUEL ALBARRAN, No. 24-2758 D.C. No. Petitioner - Appellant, 3:22-cv-05788-JNW v. MEMORANDUM* DAN WHITE, Respondent - Appellee. Appeal from the United States District Court for the Western District of Washington Jamal N. Whitehead, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Appellant Miguel Albarran (“Albarran”) appeals the district court’s dismissal of his federal habeas petition as untimely, contending he should be entitled to * 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). equitable tolling. We review de novo, Smith v. Davis, 953 F.3d 582, 587 (9th Cir. 2020) (en banc), and we affirm. Albarran was initially convicted of second-degree rape for assaulting his girlfriend’s thirteen-year-old daughter and sentenced to a mandatory twenty-five years in prison under Washington state law. He later brought an ineffective assistance of counsel claim against his trial counsel, alleging that his counsel did not adequately advise him to take a plea agreement. After unsuccessful state post- conviction proceedings ended, Albarran’s post-conviction counsel miscalculated a filing deadline and failed to timely file Albarran’s federal habeas petition. See 28 U.S.C. § 2244(d)(1). To qualify for equitable tolling to excuse this late filing, Albarran must demonstrate (1) diligent pursuit of his rights and (2) some extraordinary circumstance that prevented timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010). However, miscalculating filing deadlines is not an extraordinary circumstance but rather run-of-the-mill attorney error that “is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.” Lawrence v. Florida, 549 U.S. 327, 336–37 (2007); see also Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015) (“Attorney mistakes that warrant the label ‘garden variety’—like miscalculating a filing deadline—are the sort of mistakes that, regrettably, lawyers make all the 2 24-2758 time.”) (emphasis added). Thus, the district court properly rejected Albarran’s request for equitable tolling and dismissed his habeas petition as untimely. AFFIRMED. 3 24-2758

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-2404 D.C. No. Plaintiff - Appellee, 4:22-cr-06003-MKD-1 v. MEMORANDUM* TOMMIE SLACK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Mary K. Dimke, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Tommie Slack (“Appellant”) appeals his 108-month sentence following his guilty plea to possession with intent to distribute fentanyl under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vi). Appellant disputes the imposition of a two-level * 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). enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during commission of the offense. Reviewing the district court’s interpretation of the sentencing guidelines de novo and the application of those guidelines to the facts for abuse of discretion, United States v. Parlor, 2 F.4th 807, 811 (9th Cir. 2021), we have jurisdiction under 28 U.S.C. § 1291. We affirm. There was no error in the application of the firearm enhancement. Under U.S.S.G. § 2D1.1(b)(1), “the government simply bears the burden of proving that the weapon was possessed at the time of the offense.” United States v. Alaniz, 69 F.4th 1124, 1126–27 (9th Cir. 2023). The Government demonstrated constructive possession by bringing forward evidence tying Appellant to the vehicle where the firearm was found, including: a repair receipt for the vehicle in Appellant’s name, Appellant’s reference to the vehicle as “his Benz,” his fiancé taking control of the vehicle after his arrest, Appellant’s phone call with Agent Mitchell to challenge the removal of his personal items from the vehicle, and Appellant’s awareness of the vehicle’s change in performance after his arrest. Nor was there “clear error” in determining the cooperating defendant, who further tied Appellant to the vehicle and the firearm, was credible. See United States v. Baker, 58 F.4th 1109, 1126 (9th Cir. 2023). Together, these facts demonstrate “a sufficient connection between the defendant and the item to support the inference that the defendant exercised dominion and control over the item.” United States v. 2 24-2404 Baldon, 956 F.3d 1115, 1127 (9th Cir. 2020) (internal quotations omitted) (cleaned up). Nothing in the record suggests that there was improper reliance on U.S.S.G. § 1B1.3(a)(1)(b) as an alternative reason for applying the two-level firearm enhancement based on Appellant’s personal possession of the firearm under U.S.S.G. § 2D1.1(b)(1). AFFIRMED. 3 24-2404