Walter Avila-Velasquez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2022
• Docket: 20-71391
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WALTER MAURICIO AVILA- No. 20-71391 VELASQUEZ, AKA Herbert Donaldo Hernandez, Agency No. A074-437-849

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 11, 2022** Phoenix, Arizona

Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges.

Walter Mauricio Avila-Velasquez, a native and citizen of Guatemala,

petitions for review of an order of the Board of Immigration Appeals (BIA)

denying his applications for withholding of removal and relief under the

* 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). Page 2 of 3

Convention Against Torture (CAT). We deny the petition.

1. Avila-Velasquez has, by failing to present a substantive argument,

waived any challenge to the merits of the BIA’s decision rejecting his applications

for withholding and CAT relief. See Martinez-Serrano v. I.N.S., 94 F.3d 1256,

1259 (9th Cir. 1996). In any case, Avila-Velasquez was afforded an opportunity to

testify at his hearing before the immigration judge and declined to do so, instead

choosing to rely on his application and supporting documents at his hearing. He

also acknowledged at the hearing that he had provided false information in a

previous asylum application and did not adequately justify that falsehood to the

agency. See Li v. Garland, 13 F.4th 954, 960–61 (9th Cir. 2021). Under these

circumstances, the agency’s adverse credibility determination is adequately

supported by the record and Avila-Velasquez was not denied his right to a full and

fair hearing.

2. The IJ had jurisdiction to adjudicate Avila-Velasquez’s applications for

relief. Avila-Velasquez was ordered removed in withholding-only proceedings

under 8 U.S.C. § 1231(a)(5) as opposed to traditional removal proceedings under 8

U.S.C. § 1229a. Jurisdiction in withholding-only proceedings does not require the

issuance of a notice to appear (NTA) and thus is not governed by 8 U.S.C.

§ 1229(a), the statute at issue in Pereira v. Sessions, 138 S. Ct. 2105 (2018), and

Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). See Tzompantzi-Salazar v. Page 3 of 3

Garland, 25 F.4th 752, 759 (9th Cir. 2022) (“Petitioner's current proceeding was

initiated with a different charging document—a Notice of Referral to Immigration

Judge (NOR)—which alone makes Pereira inapplicable to his proceeding.”).

Further, the nature of withholding-only proceedings does not allow Avila-

Velasquez to challenge the validity of the NTA underlying his original removal

order. See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en

banc); see also Nolasco-Amaya v. Garland, 14 F.4th 1007, 1011 n.1 (9th Cir.

2021) (“Petitioner is foreclosed from challenging reinstatement of her prior

removal order due to defective service.”).

PETITION FOR REVIEW DENIED.