REYES v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-01-22No. No. 19-72371

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part.

Jose Alfredo Reyes, a Guatemalan national, sought judicial review of an immigration board's denial of his request to withhold removal and obtain relief under the Convention Against Torture. Reyes based his claims on alleged persecution due to sexual orientation and fear of gang violence. The court examined whether substantial evidence supported the agency's factual findings on each ground for relief.

The court found that substantial evidence supported the board's conclusions that Reyes failed to demonstrate persecution based on sexual orientation, did not establish a nexus between gang-related harm and a protected ground, and did not show it was more likely than not that he would be tortured by or with the acquiescence of the Guatemalan government. The court also declined to address certain arguments because the board had not relied on those grounds in reaching its decision, and it lacked jurisdiction to review alleged due process violations without prior exhaustion. A temporary stay of removal remained in effect pending issuance of the mandate.

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

Key issues

Whether persecution based on perceived sexual orientation was established
Whether gang-related harm constituted persecution on a protected ground
Whether applicant met the standard for Convention Against Torture relief
Scope of judicial review of immigration board factual findings

Procedural posture

Reyes filed a pro se petition for review of a Board of Immigration Appeals decision affirming an immigration judge's denial of withholding of removal and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Jose Alfredo Reyes, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). We deny in part and dismiss in part the petition for review.

As to Reyess claim based on perceived sexual orientation, substantial evidence supports the agencys conclusion that Reyes failed to establish he suffered harm that rose to the level of persecution. See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (“Our caselaw characterizes persecution as an extreme concept, marked by the infliction of suffering or harm ․ in a way regarded as offensive.” (internal quotation marks omitted)); see also Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (an applicant who alleges past persecution has the burden of proving that the treatment rises to the level of persecution). In his opening brief, Reyes does not challenge the agencys conclusion that he failed to establish that he could not reasonably relocate within Guatemala to avoid future persecution. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a partys opening brief are waived).

As to Reyess claim based on a fear of gangs, substantial evidence supports the agencys determination that Reyes failed to establish the harm he fears was or would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicants “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”).

Thus, Reyess withholding of removal claim fails.

Substantial evidence also supports the agencys denial of CAT relief because Reyes failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (court not compelled to conclude petitioner was more likely than not to be tortured despite evidence of human rights concerns).

We do not address Reyess contentions as to his credibility or whether he was convicted of a particularly serious crime because the BIA did not deny relief on these grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.” (citation and internal quotation marks omitted)).

Reyes does not raise a challenge to, and therefore waives, the BIAs denial of his request to remand. See Lopez-Vasquez, 706 F.3d at 1079-80.

We lack jurisdiction to consider Reyess contentions regarding alleged violations of his right to due process. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (requiring exhaustion of a procedural error that could be corrected by the BIA).

As stated in the courts October 23, 2019 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.