NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELMER MENDEZ-JUAREZ, No. 20-73275 Petitioner, Agency No. A201-906-203 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 25, 2022** San Francisco, California Before: GRABER and WARDLAW, Circuit Judges, and BAKER,*** International Trade Judge. Elmer Alfonso Mendez-Juarez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA) decision dismissing his * 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 M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. appeal of an Immigration Judge’s (IJ) order denying his motion to reopen proceedings under 8 C.F.R. § 1003.23(b)(3) as numerically barred. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. 1. The BIA did not abuse its discretion in concluding that Mendez- Juarez’s motion to reopen was numerically barred. Mendez-Juarez submitted a motion to reopen on February 10, 2020, which was denied by the IJ for failure to attach an application for relief. Mendez-Juarez then submitted a second motion to reopen on March 6, 2020. Although the second motion to reopen included the required application for relief, each applicant is allowed to file only one motion to reopen pursuant to 8 C.F.R. § 1003.23(b)(1). Therefore, the second motion to reopen was numerically barred. 2. Even assuming that the BIA abused its discretion by failing to consider whether it should apply equitable tolling to the numerical bar, see Socop- Gonzalez v. I.N.S., 276 F.3d 1173, 1183–84 (9th Cir. 2001) (en banc), overruled on other grounds by Smith v. Davis, 953 F.3d 582, 599 (9th Cir. 2020) (en banc), the BIA did not abuse its discretion in concluding that Mendez-Juarez failed to establish prima facie eligibility for relief, see Ordonez v. I.N.S., 345 F.3d 777, 785 (9th Cir. 2003). To establish prima facie eligibility for asylum, Mendez-Juarez needed to show that he is a refugee, meaning that he either suffered past persecution or has a 2 well-founded fear of future persecution on account of a protected ground. Mendez- Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir. 2003). In his application for relief, Mendez-Juarez references threats received from his stepfather before he was kicked out, threats from his stepfather’s brothers should his stepfather go to jail, and threats from his wife’s new partner should Mendez-Juarez attempt to reunite with her. However, persecution is “an extreme concept,” see Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021), and threats alone generally “do not rise to the level of persecution,” see id. at 1062 (internal citations and quotation marks omitted). Therefore, the application fails to allege …
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