                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       OCT 19 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MARCO LOPEZ-ORTIZ,                               No.   14-73459

                Petitioner,                      Agency No. A077-763-803

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

                     On Petition for Review of an Order of the
                                Immigration Court

                              Submitted October 11, 2017**
                                San Francisco, California

Before: O’SCANNLAIN and BYBEE, Circuit Judges, and MAHAN,*** District
Judge.

      Marco Lopez-Ortiz appeals an immigration judge’s negative reasonable fear

determination. Because the facts are known to the parties, we repeat them only as


      *
             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 James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
necessary to explain our decision.

                                          I

      We lack jurisdiction to hear Lopez-Ortiz’s challenge to his underlying

expedited removal order.1 Ninth Circuit precedent makes clear that our jurisdiction

to entertain collateral attacks on expedited removal orders is quite limited. See

Pena v. Lynch, 815 F.3d 452, 455–56 (9th Cir. 2015). Pena forecloses jurisdiction

here, because Lopez-Ortiz does not allege constitutional violations in his expedited

removal order, he is not the subject of criminal charges, and he does not seek a writ

of habeas corpus. See id. Lopez-Ortiz’s reliance on Smith v. U.S. Customs &

Border Protection, 741 F.3d 1016 (9th Cir. 2014), is unavailing, because Smith

was plainly limited to the habeas context. Lopez-Ortiz’s reliance on criminal cases

is similarly unpersuasive, because the reinstatement of a prior removal order

“imposes no . . . criminal penalties.” Morales-Izquierdo v. Gonzales, 486 F.3d 484,

498 (9th Cir. 2007).

                                          II

      Lopez-Ortiz is ineligible to apply for asylum during his reinstatement

proceedings. See Perez-Guzman v. Lynch, 835 F.3d 1066, 1082 (9th Cir. 2016).



1
 Because we lack jurisdiction over Lopez-Ortiz’s underlying expedited removal
order, the documents with which he seeks to supplement the record are irrelevant.
Therefore, Lopez-Ortiz’s Motion to Supplement the Certified Administrative
Record is DENIED.

                                          2
                                           III

      The immigration judge (IJ) did not err in determining that Lopez-Ortiz lacks

a reasonable fear of persecution or torture upon removal to Mexico. We review an

IJ’s negative reasonable fear determination for substantial evidence. Andrade-

Garcia v. Lynch, 828 F.3d 829, 833–36 (9th Cir. 2016).

      As an initial matter, the IJ’s opinion was fairly brief. Lopez-Ortiz argues that

this opinion is mere boilerplate devoid of individualized review, and therefore

cannot be sustained under Ghaly v. Immigration and Naturalization Service, 58

F.3d 1425, 1430 (9th Cir. 1995). But Lopez-Ortiz raises this objection to the form

of the IJ’s decision for the first time in his reply brief, and so he has waived this

argument. Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). Thus, we

move to the substance of the IJ decision.

                                            A

      The IJ did not err in finding that Lopez-Ortiz lacks a reasonable fear of

persecution. Lopez-Ortiz is correct that (1) a finding of past persecution on account

of a protected ground mandates a rebuttable presumption of future persecution, and

(2) a finding of government persecution mandates a rebuttable presumption that

internal relocation is unreasonable. 8 C.F.R. § 1208.16(b). But even if we assume

that the IJ agreed with the asylum officer’s decision that Lopez-Ortiz was subject

to past persecution by government agents on account of a protected ground, there


                                            3
is substantial evidence in the record to rebut both presumptions.

      Lopez-Ortiz moved to a nearby town after he was robbed by the corrupt

police, and he lived there safely for nine years before entering the United States.

The record makes clear, then, that Lopez-Ortiz could reasonably relocate to avoid

persecution, because he has already successfully relocated to avoid persecution. In

addition, Lopez-Ortiz concedes that he does not know if the corrupt police officers

still work in the area, twenty-seven years after the robbery. Thus, there is

substantial evidence in the record that Lopez-Ortiz would not be subject to future

persecution upon removal to Mexico.

                                          B

      For the same reasons, the IJ did not err in finding that Lopez-Ortiz lacks a

reasonable fear of torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.

2008) (indicating that the definition of torture is merely a subset of what qualifies

as persecution).

                                          IV

      The petition is DENIED IN PART AND DISMISSED IN PART.




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