Ivan Olivares-Morales v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVAN DANIEL OLIVARES-MORALES, No. 14-73513
Petitioner, Agency No. A040-198-538
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2017
Submission Deferred December 8, 2017
Resubmitted September 14, 2021
San Francisco, California
Before: GOULD and MURGUIA, Circuit Judges, and FREUDENTHAL,**
District Judge.
Mr. Olivares-Morales (Petitioner) petitions for review of a Board of
Immigration Appeals (BIA) decision dismissing his appeal from an Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
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Judge’s (IJ) order of removal. We have jurisdiction pursuant to the exception to the
jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) for reviewing questions of law and
denial of relief under the Convention Against Torture (CAT). Agonafer v. Sessions,
859 F.3d 1198, 1202 (9th Cir. 2017); Pechenkov v. Holder, 705 F.3d 444, 448 (9th
Cir. 2012). We deny the petition.
Petitioner is a fifty year old male, native and citizen of El Salvador. He
entered the United States as a lawful permanent resident in 1986. In 2004 he was
convicted of possession of a controlled substance with intent to sell in violation of
Nevada Revised Statute (NRS) § 453.337. This conviction resulted in the
commencement of his removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii).
Petitioner now agrees the BIA properly denied his claims for asylum and
cancellation of removal given this Court’s decision in United States v. Figueroa-
Beltran, 995 F.3d 724 (9th Cir. 2021) and the Nevada Supreme Court’s decision in
Figueroa-Beltran v. United States, 467 P.3d 615 (Nev. 2020). Petitioner concedes
his 2004 conviction constitutes an aggravated felony; thus, he is ineligible for
asylum and cancellation of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i)
(ineligibility for asylum if convicted of an aggravated felony); id. § 1229b(a)(3)
(ineligibility for cancellation of removal if convicted of an aggravated felony).
Petitioner argues the BIA erred in concluding he failed to challenge the IJ’s
finding that he had been convicted of a “particularly serious crime” for the purposes
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of withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). Because Petitioner
was not sentenced for his 2004 felony “to an aggregate term of imprisonment of at
least 5 years,” see id. § 1231(b)(3)(B), Petitioner argues his conviction does not
constitute a “particularly serious crime.” Petitioner also argues the BIA erred in
finding he was not entitled to deferral of removal under CAT, 8 C.F.R. § 1208.17.
A failure to raise an issue to the BIA constitutes a failure to exhaust, depriving
this court of jurisdiction. See Vargas v. U.S. Dep’t of Immigr. & Naturalization, 831
F.2d 906, 907–08 (9th Cir. 1987). A petitioner cannot make a general challenge to
the IJ’s decision, but “must specify which issues form the basis of the appeal.” Zara
v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004).
We review questions of law de novo and questions of fact for substantial
evidence. 8 U.S.C. § 1252(b)(4)(B); Aguilar-Ramos v. Holder, 594 F.3d 701, 704
(9th Cir. 2010). For our Court to reject a factual finding, the evidence must “compel”
a conclusion different from the one which the BIA reached. Zheng v. Holder, 644
F.3d 829, 835 (9th Cir. 2011).
Petitioner contends that he sufficiently exhausted his “particularly serious
crime” argument by arguing that his state convictions were not categorically
aggravated felonies. However, his brief before the BIA did not raise any argument
about whether any conviction was for a “particularly serious crime.” Accordingly,
Petitioner failed to exhaust this issue because his arguments were not “sufficient to
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put the BIA on notice that he was challenging” the IJ’s analysis and conclusion that
petitioner was convicted of “particularly serious crimes” which bar him from
receiving withholding of removal. Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.
2004).
Finally, Petitioner claims protection under CAT arguing his gang-related
tattoos make it more likely than not that he will be targeted for harm by the police
or rival gangs with the acquiescence of a public official. The evidence does not
compel a result contrary to the BIA’s conclusions that it is not likely Petitioner will
be targeted given the length of time since he was involved in gang activities and,
even if targeted, the record does not indicate there would be acquiescence or willful
blindness by a public official toward torture by private individuals or gangs. Finally,
the BIA did not err in applying the standard for protection under CAT. 8 C.F.R. §
1208.18(a)(1). The BIA specifically recited the correct standard, and its reference
to the “Salvadorian government” and “government officials in El Salvador” does not
show a departure from our case law.
PETITION DENIED.
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