Erick Villalta v. Merrick Garland

Opinion

FILED NOT FOR PUBLICATION APR 7 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICK ANIBAL VILLALTA, No. 18-71208

Petitioner, Agency No. A208-836-650

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

Respondent.

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

Submitted April 5, 2022** Pasadena, California

Before: SCHROEDER, S.R. THOMAS, and BEA, Circuit Judges.

Erick Villalta, a native and citizen of El Salvador, petitions for review of a

Board of Immigration Appeals (“BIA”) order affirming an Immigration Judge’s

(“IJ”) denial of his application for withholding of removal and relief under the

* 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). Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review for abuse of discretion “whether the BIA applied the correct

legal standard” in determining that the petitioner committed a “particularly serious

crime,” including whether the agency relied on the “appropriate factors and proper

evidence.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (citation and internal

quotation marks omitted). We review for substantial evidence the agency’s denial

of CAT relief. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).

Under this standard, we must accept the agency’s findings as “conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B). Where, as here, the BIA has conducted a de novo review

of the record and the law, our review is generally limited to the BIA’s own

decision, except to the extent its decision incorporates the IJ’s reasoning. Guerra

v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).

We deny the petition for review.

I

The agency did not abuse its discretion in finding that Villalta had

committed a “particularly serious crime,” and was therefore statutorily ineligible

2 for withholding of removal.1 See 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ cited the

relevant legal standard articulated in Matter of Frentescu, 18 I. & N. Dec. 244

(BIA 1982), and correctly applied that standard as it has been subsequently

modified. See Anaya-Ortiz v. Holder, 594 F.3d 673, 678–80 (9th Cir. 2010)

(requiring the IJ consider the nature of the conviction, its underlying facts, and the

sentence imposed, but noting the IJ no longer needs to make a separate finding that

the petitioner is a danger to the community).

In applying this standard to conclude that Villalta’s conviction under

California Penal Code section 237.5 was a “particularly serious crime,” the IJ did

not abuse her discretion when she did not mention that Villalta had been released

on bond from Department of Homeland Security custody; that fact falls outside of

the ambit of information an IJ is required to consider under Matter of Fentescu.

See id. To the extent that Villalta also asks us to “reweigh” other evidence that the

IJ already identified and analyzed, we lack jurisdiction to do so. Avendano-

Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015).

1 Although Villalta did not challenge the IJ’s “particularly serious crime” finding in his appeal to the BIA, the BIA’s sua sponte discussion of this issue was sufficient to preserve our jurisdiction over it. See Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc). We exercise our discretion to review the merits of this determination—despite the government’s failure to argue it in its answering brief—because Villalta fully briefed this issue in his petition for review. See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004). 3 II

We also deny Villalta’s petition for review as to the BIA’s dismissal of his

CAT claim. Substantial evidence supports the agency’s determination that he

failed to show he is more likely than not to be tortured by or with the acquiescence

of the El Salvadoran government, given that Villalta did not prove that he has been

tortured in the past; Villalta himself has not been threatened or harmed since he left

El Salvador more than fifteen years ago; none of his past incidents of mistreatment

were reported to authorities in El Salvador; and there is evidence in the record that

El Salvador is taking steps to reduce police corruption. See Delgado v. Holder,

648 F.3d 1095, 1108 (9th Cir. 2011); Andrade-Garcia v. Lynch, 828 F.3d 829,

836–37 (9th Cir. 2016) (“We have reversed agency determinations that future

torture is not likely only when the agency failed to take into account significant

evidence establishing government complicity in the criminal activity.”). In short,

the record does not compel a conclusion contrary to the agency’s. See 8 U.S.C.

§ 1252(b)(4)(B).

PETITION DENIED.