Ricardo Cruz-Calmo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 25, 2022
• Docket: 20-72841
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO CRUZ-CALMO, No. 20-72841

Petitioner, Agency No. A202-065-865

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

Respondent.

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

Argued and Submitted April 12, 2022 San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and RAKOFF,** District Judge.

Ricardo Cruz-Calmo, a citizen of Guatemala, petitions for review of a Board

of Immigration Appeals (BIA) order upholding the denial of his claims for asylum

and withholding of removal under the Immigration and Nationality Act and

protection under the Convention Against Torture (CAT). We have jurisdiction under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 8 U.S.C. § 1252 and deny the petition.

During his time in the United States, Cruz-Calmo was convicted in

Washington state court for driving under the influence (DUI). The BIA held that his

DUI conviction was a “particularly serious crime” that barred Cruz-Calmo’s

eligibility for asylum and withholding of removal. It also denied CAT relief because

Cruz-Calmo had not shown it was more likely than not that he would be tortured

with the acquiescence of the government if returned to Guatemala. On appeal, Cruz-

Calmo challenges the agency’s “particularly serious crime” determination and

argues that the denial of his CAT claim is not supported by substantial evidence.

1. “Where the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994),

and does not express disagreement with any part of the [Immigration Judge’s (IJ)]

decision, the BIA adopts the IJ’s decision in its entirety” and we review both

decisions. Joseph v. Holder, 600 F.3d 1235, 1239–40 (9th Cir. 2010). Though we

lack jurisdiction over the ultimate decision that Cruz-Calmo committed a

particularly serious crime, we retain jurisdiction to “determine whether the [agency]

applied the correct legal standard.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020)

(quoting Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019)). Our review is

“limited to ensuring that the agency relied on the ‘appropriate factors’ and ‘[]proper

evidence’ to reach [its] conclusion.” Id. (first alteration in original) (quoting

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

2 20-72841 “only if the BIA acted arbitrarily, irrationally, or contrary to law.” Id. (quotation

marks omitted) (quoting Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012) (per

curiam)).

Cruz-Calmo argues that the agency created a per se category of particularly

serious crimes for all DUIs. We disagree. The IJ never concluded that all DUIs are

necessarily “particularly serious.” Instead, the IJ stated the elements of Cruz-

Calmo’s DUI offense and explained how those elements “potentially bring the

offense within the ambit of a particularly serious crime.” See Bare, 975 F.3d at 961–

62 (quotation marks omitted) (quoting In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A.

2007), overruled in part on other grounds by Blandino-Medina v. Holder, 712 F.3d

1338, 1347–48 (9th Cir. 2013)). The agency properly concluded that the risks

potentially posed by those elements meant that Cruz-Calmo’s DUI conviction passed

the first gatekeeping factor of the “particularly serious crime” analysis.

Cruz-Calmo also contends that when evaluating the other factors, the IJ

ignored favorable evidence. His contention boils down to a disagreement with the

IJ’s weighing of relevant evidence, which was not arbitrary, irrational, or contrary

to law. See id. at 961.1

2. We review the agency’s denial of CAT relief for substantial evidence.

1 Cruz-Calmo affirmatively waived the argument that the agency erred by relying on the police report. See Alcaraz-Enriquez v. Garland, 19 F.4th 1224, 1231 (9th Cir. 2021).

3 20-72841 Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th Cir. 2015). “Under the

substantial evidence standard, ‘administrative findings of fact are conclusive unless

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

Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (citing 8 U.S.C.

§ 1252(b)(4)(B)).

Cruz-Calmo argues that the agency failed to consider all the evidence because

it found that his past harm was limited to “kidnapping and a singular beating.” But

we need not decide whether the record compels a different conclusion because the

agency assumed that the harm suffered by Cruz-Calmo amounted to torture. The

agency concluded that Cruz-Calmo did not qualify for CAT protection because he

could safely relocate to another part of Guatemala and had not established that the

government would acquiesce to his torture. The agency’s conclusion that Cruz-

Calmo could relocate was also proper. Cruz-Calmo’s family has lived safely in

another town since 2015. And although Cruz-Calmo testified that he wouldn’t be

able to farm where his wife lives, he also stated that other people in town farm for

an occupation. As for Cruz-Calmo’s contention that he could be found by his

persecutors, he provides no reason to believe that rival party members would still be

looking for him seven years later (especially given the fact that the rival party has

disbanded).

Finally, Cruz-Calmo argues that evidence about the government’s failure to

4 20-72841 protect indigenous people establishes the government’s acquiescence to his potential

torture. But the country conditions evidence also shows that the Guatemalan

government is taking steps to combat violence against indigenous people, including

passing protective laws, creating specialized agencies, founding model police forces

in indigenous communities, and recognizing indigenous laws. Because “a general

ineffectiveness on the government’s part to investigate and prevent crime will not

suffice to show acquiescence,” the record fails to compel the conclusion that Cruz-

Calmo qualifies for CAT protection. See Xochihua-Jaimes v. Barr, 962 F.3d 1175,

1184 (9th Cir. 2020) (quoting Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir.

2016)).

PETITION DENIED.

5 20-72841