Alonso Castaneda-Andrade v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALONSO CASTANEDA-ANDRADE, No. 20-71760
AKA Alonso Andrade Castaneda,
Agency No. A056-800-639
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2022**
San Francisco, California
Before: WARDLAW, IKUTA, and BADE, Circuit Judges.
Alonso Castaneda-Andrade petitions for review of a decision of the Board of
Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)
denying his application for asylum, withholding of removal, and request for
*
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).
protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition in part and dismiss it in part.
We deny the petition for review as to deferral of removal under the CAT for
two reasons. First, in his opening brief, Castaneda-Andrade does not challenge the
IJ’s conclusion that he failed to establish that any torture would be “inflicted by, or
at the instigation of, or with the consent or acquiescence of, a public official acting
in an official capacity or other person acting in an official capacity.” 8 C.F.R. §
1208.18(a)(1). Castaneda-Andrade therefore forfeited that argument, see
Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996), and that
forfeiture is dispositive, because Castaneda-Andrade bears the burden of
establishing his entitlement to deferral of removal under the CAT, see Arteaga v.
Mukasey, 511 F.3d 940, 948–49 (9th Cir. 2007).
Second, even absent that forfeiture, we would deny the petition for review
because substantial evidence supports the agency’s finding that Castaneda-Andrade
did not establish that it is more likely than not that he would be tortured if returned
to Mexico. See Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008).
Castaneda-Andrade’s reliance on Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), is
unavailing because the IJ expressly evaluated his expert witness’s testimony and
the risks the expert identified, and the BIA adopted and affirmed the IJ’s analysis
2
“even considering . . . the testimony of [Castaneda-Andrade’s] expert witness.”
The IJ and BIA were not required to find the expert’s testimony “persuasive or
sufficient to meet the burden of proof” even if it were credible. Garland v. Ming
Dai, 141 S. Ct. 1669, 1680 (2021). Here, although the IJ did not make an adverse
credibility finding, the IJ and BIA still concluded that Castaneda-Andrade’s
evidence was too speculative to establish a threat of torture particularized to him,
and that conclusion is supported by substantial evidence. See Villalobos Sura v.
Garland, 8 F.4th 1161, 1170 (9th Cir. 2021).
We lack jurisdiction to review whether the IJ applied the correct legal
standard to determine if Castaneda-Andrade’s aggravated felony conviction was
for a “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii), because
Castaneda-Andrade did not submit a brief in his appeal to the BIA, and nothing in
his notice of appeal was “sufficient to put the BIA on notice of his claim” that the
IJ applied an erroneous legal standard to this claim. Segura v. Holder, 605 F.3d
1063, 1066 (9th Cir. 2010).
DENIED IN PART AND DISMISSED IN PART.1
1
The temporary stay of removal, see Dkt. 1, remains in place until the
mandate issues. The motion for a stay of removal, see id., is otherwise denied.
3