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GARCIA ABARCA v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-22No. No. 18-71120

Summary

Holding. The petition for review was denied, and the temporary stay of removal remained in place pending issuance of the mandate.

Josephina Garcia-Abarca, a Mexican citizen, sought review of the Board of Immigration Appeals' decision upholding an immigration judge's denial of her withholding of removal and Convention Against Torture relief claims. Garcia-Abarca did not argue in her opening brief against the finding that her claimed past persecution did not occur in her proposed country of removal, effectively waiving that challenge. The court found substantial evidence supported the agency's determination that she failed to demonstrate an objectively reasonable fear of future persecution and did not meet the CAT standard requiring a showing that torture was more likely than not if she returned to Mexico.

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

Key issues

  • Whether past persecution occurred in the country of removal
  • Whether petitioner established objectively reasonable fear of future persecution
  • Whether petitioner met the CAT standard for torture

Procedural posture

The court reviewed for substantial evidence the BIA's order dismissing Garcia-Abarca's appeal from the immigration judge's denial of withholding of removal and CAT relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM **

Josephina Garcia-Abarca, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judges (“IJ”) decision denying her application for withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny the petition for review.

In her opening brief, Garcia-Abarca does not make any argument challenging the BIAs conclusion that the IJ improperly found Garcia-Abarca suffered past persecution where the claimed mistreatment did not occur in her proposed country of removal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (concluding that petitioner waived any challenge to an issue that was not argued in his opening brief).

Substantial evidence supports the agencys determination that Garcia-Abarca failed to establish an objectively reasonable fear of future persecution. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (finding that the possibility of future persecution was “too speculative”). Thus, Garcia-Abarcas withholding of removal claim fails.

Substantial evidence also supports the agencys denial of CAT relief because Garcia-Abarca failed to show it is more likely than not she would be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We reject as unsupported by the record Garcia-Abarcas contention that the IJ failed to accord proper evidentiary weight to her testimony.

As stated in the courts July 12, 2018 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.