Sustretovas v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2023
• Docket: 21-1078
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VIKTORAS SUSTRETOVAS, No. 21-1078

Petitioner, Agency No. A055-049-372

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

Respondent.

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

Submitted March 10, 2023** San Francisco, California

Before: FRIEDLAND, R. NELSON, Circuit Judges, CARDONE, *** District Judge

Petitioner Viktoras Sustretovas petitions for review of an order of the

Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ)

denial of his application for withholding of removal under the Immigration and

* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. Nationality Act (INA). We have jurisdiction under 8 U.S.C. § 1252, Wang v.

Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and we deny the petition.1

When the BIA conducts its own review of the evidence and law rather than

adopting the IJ’s decision, we review the decision of the Board, “except to the

extent [that] the IJ’s opinion is expressly adopted.” Cordon-Garcia v. INS, 204

F.3d 985, 990 (9th Cir. 2000).

To demonstrate eligibility for withholding of removal, an applicant must

demonstrate that a protected ground is at least “a reason” for the harm he will

likely suffer. See Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th Cir.

2017). We review the agency’s findings of fact regarding the motivations of the

applicant’s persecutors for substantial evidence. Parussimova v. Mukasey, 555

F.3d 734, 739 (9th Cir. 2009). Under this standard, an agency’s findings of fact

are “conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th

Cir. 2022) (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006)).

We do not need to address the merits of the IJ’s adverse credibility finding

1 Sustretovas’s opening brief does not raise a claim for relief under the Convention Against Torture (CAT). Thus, this claim is waived on appeal, and we do not address it. Sung Kil Jang v. Lynch, 812 F.3d 1187, 1189 n.1 (9th Cir. 2015). Additionally, Sustretovas failed to appeal the IJ’s determination that he is ineligible for asylum due to his conviction for an aggravated felony offense; therefore, he failed to administratively exhaust the issue under 8 U.S.C. § 1252(d)(1).

2 because the Board’s conclusion that, even crediting his testimony,2 Sustretovas

failed to establish eligibility for relief on account of a protected ground is

supported by substantial evidence. See, e.g., Riera-Riera v. Lynch, 841 F.3d

1077, 1081 (9th Cir. 2016) (“The lack of a nexus to a protected ground is

dispositive of [petitioner’s] asylum and withholding of removal claims.”); Hose

v. INS, 180 F.3d 992, 995 n.2. (9th Cir. 1999) (declining to decide issue

unnecessary to case resolution); 8 U.S.C. § 1101(a)(42).

Even assuming Sustretovas did not forfeit through lack of adequate

briefing a challenge to the BIA’s holding that the harm he fears lacks a nexus to

a protected ground, substantial evidence supports the conclusion that Sustretovas

failed to provide any objective direct or circumstantial evidence that he suffered

persecution on account of any political opinion or particular social group. INS v.

Elias-Zacarias, 502 U.S. 478, 483 (1992); Sharma v. Garland, 9 F.4th 1052, 1060

(9th Cir. 2021) (noting that persecution is an extreme concept meaning

“something considerably more than discrimination or harassment,” and not

“every sort of treatment our society regards as offensive” (quotation marks and

citations omitted)).

Sustretovas did not testify that he himself holds any political opinion or

was harmed based off one imputed to him because of any disagreement with the

2 Given that we need not reach Sustretovas’s challenge to IJ’s the adverse credibility determination, we do not consider the part of that challenge arguing that the IJ’s approach to evaluating Sustretovas’s credibility violated due process.

3 Lithuanian government. He testified that as a child he was approached by a

Lithuanian skinhead group and was beaten up when he refused to join them;

however, he pointed to no evidence that this was due to any political opinion. See

Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010).

Sustretovas also fails to assert any harm on account of alleged mixed

ethnicity. His father, who is ethnically Russian, testified before the IJ that he

suffered extortion after opening a small car repair garage shop, but there is no

evidence that this was on account of either his or Sustretovas’s ethnicity.

PETITION DENIED.3

3 The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal is otherwise denied.