Cesar Calel-Bautista v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2022
• Docket: 16-73194
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAR APARICIO CALEL-BAUTISTA, No. 16-73194

Petitioner, Agency No. A205-720-035

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 16, 2022**

Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.

Cesar Aparicio Calel-Bautista, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s decision denying his application for

withholding of removal and relief under the Convention Against Torture (“CAT”).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th

Cir. 2006). We deny the petition for review.

Substantial evidence supports the agency’s determination that Calel-Bautista

failed to establish a likelihood of future persecution. See Tamang v. Holder, 598

F.3d 1083, 1095 (9th Cir. 2010) (“[Petitioner’s] perceived fear of future

persecution is not objectively reasonable.”); Gui v. INS, 280 F.3d 1217, 1230 (9th

Cir. 2002) (petitioner failed to establish a clear probability of future persecution

where many years had passed since his departure from home country). Thus,

Calel-Bautista’s withholding of removal claim fails.

Substantial evidence supports the agency’s denial of CAT relief because

Calel-Bautista 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).

We decline to reach Calel-Bautista’s contention, raised for the first time in

his reply brief, that the BIA failed to consider evidence. See Nguyen v. Barr, 983

F.3d 1099, 1102 (9th Cir. 2020) (petitioner waived a claim first challenged in the

reply brief).

2 16-73194 The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED.

3 16-73194