BALDERRAMA RIVERO v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-19No. No. 19-70982

Summary · law.co

Holding. The petition for review is denied. The court affirmed the BIA's dismissal of Balderrama-Rivero's appeal challenging his ineligibility for cancellation of removal and deferral of removal under the Convention Against Torture.

Rosario De Jesus Balderrama-Rivero sought review of the Board of Immigration Appeals' decision upholding an immigration judge's rulings that he was ineligible for cancellation of removal based on a 1992 aggravated felony conviction, and ineligible for deferral of removal under the Convention Against Torture. Balderrama-Rivero did not raise arguments challenging the cancellation of removal determination before either the BIA or the appellate court, so those arguments were deemed waived. Regarding the torture deferral claim, the court found the agency's determination was supported by substantial evidence, including that Balderrama-Rivero had previously traveled to Mexico without incident, had never been personally harmed or threatened there, and lacked a particularized connection to the country conditions evidence of crime and human rights abuses he presented.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Waiver of arguments not raised before the BIA or on appeal
Aggravated felony conviction as bar to cancellation of removal
Substantial evidence standard for Convention Against Torture deferral claims
Individual risk of torture versus general country conditions

Procedural posture

The petitioner appealed the BIA's decision dismissing his appeal of an immigration judge's removal eligibility determination.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Rosario De Jesus Balderrama-Rivero petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of a decision of an immigration judge (IJ) that he is ineligible for cancellation of removal, see 8 U.S.C. § 1229b(a), and deferral of removal under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

The IJ determined that Balderrama-Rivero is ineligible for cancellation of removal due to his December 1992 conviction of an offense that is categorically an aggravated felony. Balderrama-Riveros brief to the BIA did not raise the argument that the IJ erred in reaching this conclusion, but we nevertheless deem this issue to be exhausted because the BIA cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) and explicitly adopted the IJs decision. See Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008). In his opening brief on appeal, Balderrama-Rivero again does not argue that the IJs determination was in error, and therefore any such argument is waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). We therefore deny Balderrama-Riveros petition for review as to cancellation of removal on this ground.

The agency also determined that Balderrama-Rivero is not eligible for deferral of removal under the CAT because he failed to carry his burden of proving that “it is more likely than not” that he “would be tortured in the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). This determination is supported by substantial evidence, including that Balderrama-Rivero regularly traveled to Mexico before 2005 and acknowledged he has never been harmed or threatened in Mexico. Evidence that members of Balderrama-Riveros extended family, who were involved in drug cartels, were harmed or killed by rival cartels, is not to the contrary, given Balderrama-Riveros testimony that he has never been involved with cartels. Country conditions evidence indicating widespread crime and some human-rights abuses in Mexico, is not sufficiently particularized to compel the conclusion that Balderrama-Rivero would more likely than not be the subject of torture should he return to Mexico. See Lopez v. Sessions, 901 F.3d 1071, 1078 (9th Cir. 2018).

PETITION DENIED.

FOOTNOTES

. Balderrama-Riveros motion to submit this case on the briefs, Dkt. No. 35, is denied as moot.