Manuel Diaz Navarro v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2020
• Docket: 18-72249
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 16 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL DIAZ NAVARRO No. 18-72249

Petitioner, Agency No. 073-833-519

v. MEMORANDUM* WILLIAM BARR, Attorney General

Respondent.

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

Submitted January 6, 2020,** Pasadena, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,*** District

Judge.

Manuel Diaz Navarro petitions for review of an order of the Board of

Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. denying his claims for asylum, for withholding of removal, and for protection

under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.

§ 1252.

The BIA’s determination that Diaz Navarro was not more likely than not to

be tortured on return to Mexico, barring him from CAT relief, was supported by

substantial evidence. Most importantly, Diaz Navarro has not demonstrated that he

experienced relevant past torture, 8 C.F.R. § 1208.16(c)(3)(i), the “principal factor”

for determining whether future torture is likely. Avendano-Hernandez v. Lynch,

800 F.3d 1072, 1080 (9th Cir. 2015). Specifically, the BIA’s conclusion that Diaz

Navarro did not experience past torture because he “did not sufficiently establish

that his attackers were police or government actors,” represented a reasonable view

of the facts given the threats Diaz Navarro received from cartel members and his

own uncertainty about the identity of his attackers. As such, the BIA’s finding is

binding on this panel. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017)

(“Factual findings are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.”).

The BIA’s assessment of the remaining evidence of the likelihood of future

torture was equally reasonable and based in the record. First, the BIA’s conclusion

that any risk of future torture was mitigated by Diaz Navarro’s ability to relocate, 8

2 C.F.R. § 1208.16(c)(3)(ii), was rational based on his prior relocation to La Paz.

Second, the BIA’s conclusion that the passage of time reduced the future risk of

torture was reasonable given the likely impact nine years has had on his attackers’

continued interest in harming him. See Matter of W-G-R-, 26 I. & N. Dec. 208,

224–25 (BIA 2014). Consideration of the passage of time was appropriate under 8

C.F.R. § 1208.16(c)(3), which requires consideration of “all evidence relevant to

the possibility of future torture.” Finally, the BIA’s conclusion that the State

Department’s country conditions report could not save Diaz Navarro’s CAT

application because it did not demonstrate a “particularized” threat to Diaz Navarro

was reasonable. Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006). In

short, the BIA’s conclusion that it was not more likely than not that Diaz Navarro

would be tortured upon returning to Mexico was supported by substantial

evidence.

As for Diaz Navarro’s other arguments, the court need not address Diaz

Navarro’s argument that the requirement that asylum seekers file an application

within one year of their entry into the United States, 8 U.S.C. § 1158(a)(2)(B), (D),

violates international law. This is because the BIA, in addition to finding that his

asylum application was untimely, found that Diaz Navarro was statutorily

ineligible for asylum because his 2006 conviction for robbery is categorically an

3 aggravated felony theft offense, 8 U.S.C. § 1101(a)(43)(G), and therefore a per se

particularly serious crime barring his asylum claim. 8 U.S.C. §§ 1158(b)(2)(A)(ii),

1158(b)(2)(B)(i). Diaz Navarro waived any challenge to this finding by omitting it

from his brief, see Delgado-Hernandez v. Holder, 697 F.3d 1125, 1126 n.1 (9th

Cir. 2012), and Diaz Navarro’s asylum claim is accordingly barred regardless of

the one-year limit.

Finally, the court rejects Diaz Navarro’s argument that the “particularly

serious crime” provision of the Immigration and Nationality Act U.S.C. §

1231(b)(3)(B)(ii), is void for vagueness. This court recently held “that the

‘particularly serious crime’ provision is not unconstitutionally vague on its face”

because it “applies only to real-world facts.” Guerrero v. Whitaker, 908 F.3d 541,

545 (9th Cir. 2018). The particularly serious crime standard is similarly not

unconstitutionally vague as applied to Diaz Navarro because the IJ, whose

reasoning the BIA adopted, applied it to the “real-world facts” of Diaz Navarro’s

conviction for robbery, including consideration of Diaz Navarro’s own testimony

and the record of his conviction, and properly concluded that this gang robbery

involving force was a particularly serious crime.

PETITION DENIED.