Sigifredo Zarate-Dominguez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 2, 2020
• Docket: 19-70215
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 2 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIGIFREDO ZARATE-DOMINGUEZ, No. 19-70215

Petitioner, Agency No. A213-075-610

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

Respondent.

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

Submitted May 6, 2020** Seattle, Washington

Before: KLEINFELD, W. FLETCHER, and RAWLINSON, Circuit Judges.

Sigifredo Zarate-Dominguez (Zarate) petitions for review of an order from

the Board of Immigration Appeals (Board) dismissing his appeal of the denial of

asylum, withholding of removal, and relief under the Convention Against Torture.

* 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). We have jurisdiction under 8 U.S.C. § 1252, and review for substantial evidence.

See Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016), as amended.

1. Unless Zarate raises a viable legal or constitutional question, we lack

jurisdiction to review the denial of asylum and withholding of removal, because he

was convicted of a particularly serious crime. See Pechenkov v. Holder, 705 F.3d

444, 448 (9th Cir. 2012). He failed to do so.

Zarate’s arguments effectively request this Court to reweigh the Board’s

determination, which we cannot do. See id. And to the extent Zarate’s due process

claim applies to the particularly serious crime determination, the claim fails. The

Immigration Judge did not use Zarate’s testimony to determine eligibility for relief.

The Immigration Judge credited the testimony of Zarate’s mother and brother, but

gave it limited weight because it was based on information that had been received

from others. Thus, the proceedings were not fundamentally unfair. See Ibarra-

Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006).

As Zarate failed to present a viable legal or constitutional claim, the panel

lacks jurisdiction to review the asylum and withholding of removal claims. See

Pechenkov, 705 F.3d at 448.

2. Substantial evidence supported the finding that Zarate failed to

establish a clear probability of torture with the acquiescence of a public official.

2 Zarate’s belief that his father would torture him was too speculative to sustain a

claim of torture. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011). And

Zarate submitted no evidence that the Mexican government would acquiesce in any

torture by his father.

Zarate waived any argument regarding his failure to establish the likelihood

of hospitalization upon his return to Mexico due to failure to address the issue in

his Opening Brief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). In

addition, Zarate failed to demonstrate that the Mexican government created the

conditions in mental health facilities with the specific intent to torture patients. See

Villegas v. Mukasey, 523 F.3d 984, 988-89 (9th Cir. 2008). Also, substantial

evidence supported the finding that the Mexican government would not acquiesce

to any torture, as the Mexican government has implemented measures to improve

conditions for the mentally ill. See id.

PETITION DISMISSED in part and DENIED in part.