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AMAYA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-15No. No. 20-72745

Summary

Holding. The petition for review was denied, and the BIA's decision denying Convention Against Torture relief was upheld.

Oscar Amaya, a Salvadoran national, petitioned for review of the Board of Immigration Appeals' denial of relief under the Convention Against Torture. Amaya claimed he feared torture upon return to El Salvador based on his cooperation with police against gang members and his gang tattoos, which he argued could provoke violence from rival gangs and government persecution.

The court found substantial evidence supported the BIA's conclusion that Amaya had not suffered past torture. The record did not demonstrate that gang members specifically intended to torture him, and case law requires proof of specific intent to torture rather than merely foreseeable harm. Additionally, without a finding of past torture, Amaya's evidence of potential future torture was insufficient—he presented only generalized claims about country conditions, which do not meet the legal standard for establishing likelihood of future torture.

Amaya also forfeited any arguments regarding asylum and withholding of removal by failing to raise these issues in his opening brief to the court.

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

Key issues

  • Whether substantial evidence supported finding that petitioner did not suffer past torture
  • Whether specific intent to torture by perpetrators was demonstrated
  • Whether generalized country conditions evidence suffices to show likelihood of future torture
  • Waiver of asylum and withholding of removal claims

Procedural posture

Amaya sought judicial review of a BIA decision denying his Convention Against Torture relief claim.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM *

Petitioner Oscar Amaya (Amaya), a native and citizen of El Salvador, seeks review of the decision of the Board of Immigration Appeals (BIA) denying him relief under the Convention Against Torture (CAT). Amaya alleges that he fears returning to El Salvador because (1) he cooperated with police against gang members who killed his brother in his presence, and (2) he has Norteños gang tattoos that may lead to violence from other gangs and persecution from the Salvadoran government.

1. Substantial evidence supports the BIAs conclusion that Amaya did not suffer past torture. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020) (reviewing for substantial evidence factual findings underlying the BIAs determination of ineligibility for CAT relief). The record does not reflect that members of the Mara Salvatrucha gang (MS-13) intended to specifically torture Amaya. See Eneh v. Holder, 601 F.3d 943, 948 (9th Cir. 2010) (holding that “a petitioner must show for purposes of CAT relief that someone—either a government official or private actor—specifically intended to torture him or her”) (citation omitted); see also Cole v. Holder, 659 F.3d 762, 773 (9th Cir. 2011) (explaining that “[a]cts that merely have the foreseeable result of inflicting harm are not sufficient” to show specific intent to torture).

2. Absent the inference that stems from a finding of past torture, the evidence does not compel the conclusion that Amaya faces a “likelihood of future torture” if removed to El Salvador. Dawson v. Garland, 998 F.3d 876, 883–84 (9th Cir. 2021). The only evidence presented by Amaya was of a generalized nature, which does not suffice. See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016).

3. Amaya has waived any challenge to the denial of asylum and withholding of removal, because he failed to address that issue in his opening brief. See Nguyen v. Barr, 983 F.3d 1099, 1102 (9th Cir. 2020).

PETITION DENIED.