Perez v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NOE HUMBERTO PEREZ, No. 21-15

Petitioner, Agency No. A029-176-854

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

Respondent.

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

Submitted December 13, 2023** Pasadena, California

Before: WALLACH,*** CHRISTEN, and OWENS, Circuit Judges.

* 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 Evan J. Wallach, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. Petitioner Noe Humberto Perez, a native and citizen of El Salvador, entered

the United States in 1986 without immigration documents. In 1998, he was

convicted of the offense of assault with a semiautomatic firearm under Section

245(b) of the California Penal Code. The U.S. Department of Homeland Security

determined the offense qualifies as an aggravated felony and issued an

administrative order of removal under Section 238(b) of the Immigration and

Nationality Act (“INA”). Petitioner sought withholding of removal and protection

under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”)

denied all requested relief, and the Board of Immigration Appeals (“BIA”) adopted

and affirmed the IJ’s decision. Petitioner timely seeks our review. We deny the

petition.

1. Regarding withholding of removal, the BIA found that Petitioner had

waived his appeal of the IJ’s denial of withholding of removal by failing to

challenge on appeal the IJ’s finding that Petitioner is statutorily ineligible for

withholding of removal due to a past conviction deemed to be an aggravated felony

and a per se particularly serious crime. Petitioner concedes that he did not dispute

this finding by the IJ before the BIA, and that it is therefore unexhausted. Under

Section 242(d)(1) of the INA, we may deny a petition where an alien has failed to

“exhaust[] all administrative remedies available to the alien as of right.” Umana-

2 Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023). Therefore, we deny the

portion of the petition regarding withholding of removal.

2. As for protection under CAT, the BIA adopted and affirmed the IJ’s

decision to deny relief under CAT due to an absence of past torture, the

generalized nature of Petitioner’s claim, and the lack of evidence that

governmental authorities would fail to protect him. We review for substantial

evidence the agency’s CAT determination, see Lalayan v. Garland, 4 F.4th 822,

840 (9th Cir. 2021). We affirm the BIA’s decision.

Petitioner argued before the agency that he faces a likelihood of torture upon

removal because he has extensive gang-related tattoos from his former life as a

gang member, and that general country conditions in El Salvador present risks of

being targeted for violence for those who have tattoos. The IJ found, and the BIA

affirmed, that the evidence and assertions put forward by Petitioner only offered

broad, general evidence of any risk of torture, and that Petitioner did not present a

sufficiently personalized risk of torture.

To obtain relief under CAT, Petitioner must do more than make generalized

claims that the authorities of a country are not able to effectively prevent crime.

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (citing Garcia-Milian

v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014)). Speculation about the possibility

3 of torture or that the authorities would not do their duty to prevent harm is not

enough. See Matter of J-F-F, 23 I&N Dec. 912, 917-18 (A.G. 2006).

Petitioner argues that the IJ failed to account for corruption within El

Salvador and “its potential connection” to the persecution Petitioner will face upon

his removal, and that Petitioner proved each step in the “series of suppositions”

such that the threat of torture was not speculative. However, the IJ did consider the

evidence of corruption in El Salvador and found that it did not demonstrate that

Petitioner would be “specifically” targeted for torture upon his return, and

Petitioner does not describe how his asserted evidence provides proof of the “series

of suppositions” noted by the IJ.

The BIA considered these arguments and found no clear error in the IJ’s

findings, because mere speculation of a likelihood of torture is insufficient to

demonstrate eligibility for CAT relief. Because the BIA and IJ found no evidence

of threats of torture against Petitioner, specifically, and Petitioner has not shown

any error in these findings on appeal, we find substantial evidence for the BIA’s

decision as to relief for Petitioner under CAT. Accordingly, we affirm the denial

of relief under CAT.

PETITION DENIED.