Jose Valencia v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2020
• Docket: 14-72613
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ALVAREZ VALENCIA, No. 14-72613

Petitioner, Agency No. A078-265-714

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 13, 2020** San Francisco, California

Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY, *** District Judge.

Jose Alvarez Valencia, a native and citizen of Mexico, petitions for review

of a decision by the Board of Immigration Appeals (“BIA”) affirming an

* 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). *** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. immigration judge’s (“IJ”) denial of his applications for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. Alvarez Valencia argues that he suffered past persecution, which gives rise

to a presumption of a well-founded fear of future persecution. Reviewing for

substantial evidence, Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005),

we conclude that the BIA did not err in affirming the IJ’s finding that Alvarez

Valencia did not suffer past persecution.

First, because threats alone generally do not constitute past persecution, Lim

v. INS, 224 F.3d 929, 936 (9th Cir. 2000), the BIA did not err in holding that the

threats Alvarez Valencia suffered did not rise to the level of persecution. Second,

substantial evidence supports the BIA’s finding that the harm Alvarez Valencia

suffered was not on account of his family membership. The timing and content of

the threats indicate that the Knights Templar targeted Alvarez Valencia to obtain

information, not because of a protected ground. See Zetino v. Holder, 622 F.3d

1007, 1015–16 (9th Cir. 2010) (holding that substantial evidence supported finding

that there was no nexus to a protected ground where individuals who wanted

family land murdered the petitioner’s family members).

The BIA did not err in failing to consider whether Alvarez Valencia was

harmed on account of his political opinion and whether the Knights Templar acted

2 as the de facto government. Even if the BIA failed to consider these elements of

Alvarez Valencia’s asylum claim, a decision on these elements was not necessary

because Alvarez Valencia’s claim was doomed by the BIA’s finding that the harm

he suffered did not rise to the level of persecution. 1 INS v. Bagamasbad, 429 U.S.

24, 25 (1976) (“As a general rule courts and agencies are not required to make

findings on issues the decision of which is unnecessary to the results they reach.”).

Because the BIA did not err in upholding his asylum denial, Alvarez

Valencia necessarily fails to establish eligibility for withholding of removal. See

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

2. We review factual findings underlying a denial of protection under the CAT

for substantial evidence. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).

The evidence Alvarez Valencia presented does not compel the finding that he is

more likely than not to be tortured in Mexico because he was not tortured in the

past and did not present particularized evidence showing he would be at special

risk of torture in the future. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152

(9th Cir. 2010) (finding that “generalized evidence of violence and crime in

Mexico” was “insufficient to meet [the CAT] standard” because it was “not

1 It was similarly unnecessary for the BIA to analyze whether the Knights Templar was the de facto government as part of Alvarez Valencia’s claim for protection under the CAT. Because, as discussed below, Alvarez Valencia did not establish he was more likely than not to be tortured in Mexico, the BIA did not need to address whether the Knights Templar acted as the de facto government.

3 particular to Petitioners”).

3. Finally, we hold that Alvarez Valencia waived his due process claim by

failing to present supporting arguments in his briefing. Ghahremani v. Gonzales,

498 F.3d 993, 997 (9th Cir. 2007) (“[A]n issue referred to in the appellant’s

statement of the case but not discussed in the body of the opening brief is deemed

waived.”).

PETITION DENIED.