Cesar Centeno-Galvan v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR CENTENO-GALVAN, AKA Cesar No. 18-72014
Galvan Centeno, AKA Jorge G. Centeno,
AKA Cesar Galvan, AKA Cesar Centeno Agency No. A205-711-552
Galvan,
Petitioner, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 5, 2022**
Pasadena, California
Before: SILER,*** CALLAHAN, and FORREST, Circuit Judges.
Petitioner Cesar Centeno-Galvan is a native and citizen of Mexico. He
*
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 Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
petitions for review of the Board of Immigration Appeals’ (BIA) decision upholding
the Immigration Judge’s denial of his claims for cancellation of removal, voluntary
departure, and protection under the Convention Against Torture (CAT). We review
the agency’s factual findings for substantial evidence and its legal conclusions de
novo. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc).
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Cancellation of removal & voluntary departure. The BIA did not err in
determining that Centeno-Galvan failed to establish that his offense under California
Health & Safety Code § 11377(a) (Section 11377(a)) was not a controlled-substance
violation that renders him removable and ineligible for cancellation of removal. See
8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i), 1229b(b)(1); Coronado v.
Holder, 759 F.3d 977, 984–85 (9th Cir. 2014) (holding that Section 11377(a) is
divisible and subject to the modified categorical approach). The record is, at best,
inconclusive as to what controlled substance Centeno-Galvan was convicted of
possessing in violation of Section 11377(a), but that does not benefit him because it
is his burden to establish his eligibility for cancellation. See Pereida v. Wilkinson,
141 S. Ct. 754, 766 (2021) (an applicant for relief from removal cannot establish
eligibility where a conviction record is inconclusive as to which elements of a
divisible statute formed the offense). The BIA also did not err in denying Centeno-
Galvan voluntary departure. Substantial evidence supports the agency’s denial of
2
voluntary departure under § 1101(f)’s catch-all provision because Centeno-Galvan
could not establish good moral character during the statutory period given numerous
negative factors, including his prior criminal conviction.1 8 U.S.C. § 1101(f); 8
C.F.R. § 316.10.
2. CAT relief. Substantial evidence supports the agency’s denial of CAT
relief because Centeno-Galvan failed to show that it is more likely than not that he
will be tortured by or with the consent or acquiescence of the government if returned
to Mexico. See Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017)
(explaining that CAT relief requires the applicant to “prove not only that torture will
more likely than not occur, but also that there is sufficient state action involved in
the torture”). Centeno-Galvan’s argument hinges “on the present conditions in
Mexico as illustrated in the country condition reports” that recent migrants might be
targeted upon return. Such generalized evidence of crime in Mexico, however, is too
speculative to establish an individualized threat of torture or the necessary state
action for CAT relief. See Zheng v. Holder, 644 F.3d 829, 835–36 (9th Cir. 2011)
(possibility of torture too speculative); Delgado-Ortiz v. Holder, 600 F.3d 1148,
1152 (9th Cir. 2010) (generalized evidence of violence and crime in Mexico that is
1
Centeno-Galvan waived any challenge to the BIA’s alternative finding
related to the catch-all provision by not raising it in his opening brief. Tijani v.
Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“[W]e generally will not take up
arguments not raised in an alien’s opening brief before this court.”).
3
not particular to the petitioner is insufficient to meet CAT standard).
PETITION FOR REVIEW DENIED.
4