                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             FEB 3 2020
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
RICARDO MARTINEZ-RODRIGUEZ,                      No.   17-72158
AKA Ricardo Martinez,
                                                 Agency No. A095-775-300
              Petitioner,

 v.                                              MEMORANDUM*

WILLIAM P. BARR, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted December 5, 2019
                            San Francisco, California

Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON,**
District Judge.

      Ricardo Martinez-Rodriguez petitions for review of an order of the Board of

Immigration Appeals denying his claims for asylum, withholding of removal, and

protection under the Convention Against Torture. We deny the petition.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
      Martinez-Rodriguez was born in Puebla, Mexico, in 1990. With the

exception of a five-month trip to Mexico in 2009, he has lived in the United States

with his older sister since 2004. His mother, father, and two younger siblings

continue to live together in Puebla, Mexico.

      Martinez-Rodriguez suffers from schizophrenia. He received limited

treatment for his condition before he moved to the United States, but his family

had difficulty paying for his medication. In the United States, his sister has paid

for his medication. Martinez-Rodriguez principally contends that were he to return

to Mexico, he would not receive adequate treatment for his condition, and would

therefore be persecuted on account of his status as an indigent individual with

visible symptoms of schizophrenia or mood affective disorder. He contends that

he would face violence from criminals who prey on the indigent mentally ill and/or

forced institutionalization by governmental authorities.

      The immigration judge found that Martinez-Rodriguez had not established a

well-founded fear of persecution or a likelihood of persecution or torture. First, the

IJ found that it was speculative that his family would offer him any less support in

Mexico than in the United States, in part based on a lack of any affidavits or

declarations to that effect. Second, the IJ found that even if Martinez-Rodriguez

were correct that he would lack access to medication and therapy in Mexico, there


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was no indication that he would suffer any persecution or torture on that basis.

The IJ noted that Martinez-Rodriguez lived in Mexico both as a child and during

his five-month visit in 2009 without medication, and during those periods, he faced

no persecution and no violence apart from ordinary common crime. Finally, the IJ

credited evidence that the Mexican government “has made great strides” in the

treatment of people with mental illnesses in recent years. The BIA affirmed for

substantially the same reasons.

      We review the agency’s legal conclusions de novo and its factual findings

for substantial evidence. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).

“The ‘substantial evidence’ standard requires this court to uphold the IJ’s and

BIA’s findings and decisions if supported by reasonable, substantial, and probative

evidence on the record. To prevail, Petitioner must show that the evidence not

only supports, but compels the conclusion that these findings and decisions are

erroneous.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000) (internal

quotation marks and citations omitted).

      Substantial evidence supports the agency’s determination that Martinez-

Rodriguez did not establish a well-founded fear of persecution or a likelihood of

persecution or torture. We agree with the BIA and the IJ that “the record does not

support [Martinez-Rodriguez’s] claim that he would be at risk of coming to the


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attention of the police, the cartels and the general public if he were not medicated.”

Martinez-Rodriguez did not provide any evidence that he exhibited outward

manifestations of mental illness likely to draw attention. To the contrary, both his

testimony and medical records suggested otherwise. That he previously lived in

Mexico with inadequate treatment and suffered no threats or persecution militates

strongly against his claim that he would be targeted based on outward

manifestations of mental illness. Nor does the general inadequacy of mental health

care in Mexico—including poor conditions in mental institutions—give rise to a

cognizable claim for protection under the Convention Against Torture. See

Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008).

      Martinez-Rodriguez also contends that the IJ erred by relying on a lack of

corroborating evidence that his family would not support him in Mexico without

giving him the opportunity to introduce corroborating affidavits. See Ren v.

Holder, 648 F.3d 1079, 1091–92 (9th Cir. 2011). For the first time, by a Rule 28(j)

letter two days before we heard argument in this case, the government contended

that Martinez-Rodriguez had failed to exhaust this argument before the BIA and

that 8 U.S.C. § 1252(d)(1) therefore deprives us of jurisdiction to consider it.

Alerting the court to a potentially dispositive issue that is not based on new

information well after briefing has concluded wastes judicial resources, and we


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ordinarily would decline to consider it. See Clem v. Lomeli, 566 F.3d 1177, 1182

(9th Cir. 2009). The government contends, however, that its argument is not

waivable because it goes to our subject matter jurisdiction.

      Although we note that our decision in Ren sets a low bar for exhaustion, we

need not resolve whether that standard is met here or whether the government may

waive an argument based on § 1252(d)(1). Substantial evidence would support the

agency’s decision even if it had accepted Martinez-Rodriguez’s allegation that his

family would not provide him any support in Mexico. The link between Martinez-

Rodriguez’s condition—even if inadequately treated—and any risk of persecution

or torture is too attenuated and speculative to support a grant of asylum,

withholding, or protection under the Convention Against Torture.

      PETITION DENIED.




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