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 Board of Immigration Appeals' dismissal of Balderrama-Rivero's appeal, finding his cancellation of removal argument waived and upholding the denial of Convention Against Torture relief as supported by substantial evidence.

Rosario De Jesus Balderrama-Rivero sought review of the Board of Immigration Appeals' decision upholding an immigration judge's denial of both cancellation of removal and Convention Against Torture deferral. Regarding cancellation of removal, Balderrama-Rivero did not challenge the immigration judge's finding that his 1992 conviction constituted an aggravated felony rendering him ineligible, and the court found this argument waived. On the Convention Against Torture claim, the court determined that substantial evidence supported the agency's conclusion that Balderrama-Rivero failed to prove it was more likely than not that he would be tortured if removed to Mexico, based on his prior safe travels there, absence of personal harm or threats, and lack of involvement with criminal organizations despite family members' cartel connections.

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 Board of Immigration Appeals
Eligibility for cancellation of removal based on aggravated felony conviction
Convention Against Torture deferral standard and burden of proof

Procedural posture

Balderrama-Rivero petitioned for review of a Board of Immigration Appeals decision dismissing his appeal of an immigration judge's decision denying cancellation of removal and Convention Against Torture deferral.

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.