Salvador Cabrera-Arvizo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2020
• Docket: 19-72866
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SALVADOR CABRERA-ARVIZO, AKA No. 19-72866 Salvador Cabrera Arvizo, Agency No. A215-562-512 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted September 18, 2020** San Francisco, California

Before: SCHROEDER, W. FLETCHER, and HUNSAKER, Circuit Judges.

Petitioner Salvador Cabrera-Arvizo, a native and citizen of Mexico, seeks

review of the Board of Immigration Appeals’ (BIA) decision declining to terminate

proceedings for lack of jurisdiction and denying his application for deferral of

removal 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 panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 8 U.S.C. § 1252(a), and we deny the petition for review.

Jurisdiction. Cabrera has questioned whether the immigration court had

jurisdiction because his Notice to Appear (NTA) omitted the hearing time and date.

He raised this issue in his statement of the case and introduction in his opening

brief to us, but he did not discuss, or even mention, the issue in the body of his

opening brief. Therefore, the issue is waived. Martinez-Serrano v. INS, 94 F.3d

1256, 1259 (9th Cir. 1996) (“[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.”).

Even if this issue were properly considered—it fails. In Karingithi v.

Whitaker, we held that an NTA lacking time and date information does not divest

the immigration court of jurisdiction if the regulatory requirements are met and the

hearing time and date are timely provided. 913 F.3d 1158, 1160 (9th Cir. 2019).

Cabrera’s NTA contained all the required information necessary to vest the

immigration court with jurisdiction, and Cabrera was timely provided the hearing

time and date. See Aguilar Fermin v. Barr, 958 F.3d 887, 893–94 (9th Cir. 2020)

(finding an NTA lacking time, date, and location information sufficient to vest

jurisdiction). The immigration court properly exercised its jurisdiction.

CAT Claim. Cabrera’s CAT claim relies on two threats made by cartel-

linked individuals incarcerated in the United States, news articles and country

reports documenting generalized violence in Mexico, and an anecdote of a family

2 member who was tortured by the cartel for extortion purposes. Cabrera has no

personal history of torture or harm inflicted by the cartel he fears, nor is there any

country-conditions evidence documenting torture of individuals similarly situated

to Cabrera. See United States v. Reyes-Bonilla, 671 F.3d 1036, 1051–52 (9th Cir.

2012) (holding a petitioner can meet his burden for CAT by showing a

particularized threat of torture or relevant country conditions showing similar

torture).

The BIA determined Cabrera was not entitled to relief under CAT because

the evidence failed to demonstrate that he was more likely than not to be tortured

by or with government consent or acquiescence if returned to Mexico. See

Maldonado v. Lynch, 786 F.3d 1155, 1162, 1164 (9th Cir. 2015) (en banc)

(explaining that an applicant for deferral of removal under CAT must show it is

more likely than not he will be tortured with the consent or acquiescence of a

public official upon removal to his native country). The agency reviewed all the

relevant evidence in making its determination. Upon review, the evidence does not

compel a contrary conclusion. Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th

Cir. 2016) (“[I]n order to reverse the BIA, we must determine that the evidence not

3 only supports a contrary conclusion, but compels it . . . .” (emphasis in original)

(quotation and citation omitted)).

PETITION FOR REVIEW DENIED.1

1 Cabrera’s Motion for Stay of Removal [Dkt. 1] is denied as moot. The temporary stay of removal remains in effect until issuance of the mandate.