Jose Cabrera v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MARIA CABRERA, No. 16-71062
Petitioner, Agency No. A206-411-001
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022**
Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
Jose Maria Cabrera, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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. We review for substantial evidence
the agency’s factual findings. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.
2008). We deny the petition for review.
In his opening brief, Cabrera does not raise any challenge to the agency’s
determination that his asylum application was untimely and that he failed to
establish an exception to the filing deadline. See Lopez-Vasquez v. Holder, 706
F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a
party’s opening brief are waived).
With respect to withholding of removal, substantial evidence supports the
agency’s determination that Cabrera did not establish past persecution. See
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (“An applicant
alleging past persecution has the burden of establishing that (1) his treatment rises
to the level of persecution; (2) the persecution was on account of one or more
protected grounds; and (3) the persecution was committed by the government, or
by forces that the government was unable or unwilling to control.”). In his
opening brief, Cabrera does not raise, and therefore waives, any challenge to the
BIA’s determination that he did not establish a clear probability of future
persecution on account of a protected ground. See Lopez-Vasquez, 706 F.3d at
1079-80. Thus, Cabrera’s withholding of removal claim fails.
2 16-71062
Substantial evidence supports the agency’s denial of CAT relief because
Cabrera failed to show it is more likely than not he would be tortured by or with
the consent or acquiescence of the government if returned to Mexico. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
We reject as unsupported by the record Cabrera’s contention that the agency
erred in analyzing his claims.
The temporary stay of removal remains in place until the issuance of the
mandate.
PETITION FOR REVIEW DENIED.
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