Sustretovas v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIKTORAS SUSTRETOVAS, No. 21-1078
Petitioner, Agency No. A055-049-372
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2023**
San Francisco, California
Before: FRIEDLAND, R. NELSON, Circuit Judges, CARDONE, *** District
Judge
Petitioner Viktoras Sustretovas petitions for review of an order of the
Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ)
denial of his application for withholding of removal under the Immigration and
*
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 Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
Nationality Act (INA). We have jurisdiction under 8 U.S.C. § 1252, Wang v.
Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and we deny the petition.1
When the BIA conducts its own review of the evidence and law rather than
adopting the IJ’s decision, we review the decision of the Board, “except to the
extent [that] the IJ’s opinion is expressly adopted.” Cordon-Garcia v. INS, 204
F.3d 985, 990 (9th Cir. 2000).
To demonstrate eligibility for withholding of removal, an applicant must
demonstrate that a protected ground is at least “a reason” for the harm he will
likely suffer. See Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th Cir.
2017). We review the agency’s findings of fact regarding the motivations of the
applicant’s persecutors for substantial evidence. Parussimova v. Mukasey, 555
F.3d 734, 739 (9th Cir. 2009). Under this standard, an agency’s findings of fact
are “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th
Cir. 2022) (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006)).
We do not need to address the merits of the IJ’s adverse credibility finding
1
Sustretovas’s opening brief does not raise a claim for relief under the
Convention Against Torture (CAT). Thus, this claim is waived on appeal, and
we do not address it. Sung Kil Jang v. Lynch, 812 F.3d 1187, 1189 n.1 (9th Cir.
2015). Additionally, Sustretovas failed to appeal the IJ’s determination that he is
ineligible for asylum due to his conviction for an aggravated felony offense;
therefore, he failed to administratively exhaust the issue under 8 U.S.C. §
1252(d)(1).
2
because the Board’s conclusion that, even crediting his testimony,2 Sustretovas
failed to establish eligibility for relief on account of a protected ground is
supported by substantial evidence. See, e.g., Riera-Riera v. Lynch, 841 F.3d
1077, 1081 (9th Cir. 2016) (“The lack of a nexus to a protected ground is
dispositive of [petitioner’s] asylum and withholding of removal claims.”); Hose
v. INS, 180 F.3d 992, 995 n.2. (9th Cir. 1999) (declining to decide issue
unnecessary to case resolution); 8 U.S.C. § 1101(a)(42).
Even assuming Sustretovas did not forfeit through lack of adequate
briefing a challenge to the BIA’s holding that the harm he fears lacks a nexus to
a protected ground, substantial evidence supports the conclusion that Sustretovas
failed to provide any objective direct or circumstantial evidence that he suffered
persecution on account of any political opinion or particular social group. INS v.
Elias-Zacarias, 502 U.S. 478, 483 (1992); Sharma v. Garland, 9 F.4th 1052, 1060
(9th Cir. 2021) (noting that persecution is an extreme concept meaning
“something considerably more than discrimination or harassment,” and not
“every sort of treatment our society regards as offensive” (quotation marks and
citations omitted)).
Sustretovas did not testify that he himself holds any political opinion or
was harmed based off one imputed to him because of any disagreement with the
2
Given that we need not reach Sustretovas’s challenge to IJ’s the adverse
credibility determination, we do not consider the part of that challenge arguing
that the IJ’s approach to evaluating Sustretovas’s credibility violated due
process.
3
Lithuanian government. He testified that as a child he was approached by a
Lithuanian skinhead group and was beaten up when he refused to join them;
however, he pointed to no evidence that this was due to any political opinion. See
Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010).
Sustretovas also fails to assert any harm on account of alleged mixed
ethnicity. His father, who is ethnically Russian, testified before the IJ that he
suffered extortion after opening a small car repair garage shop, but there is no
evidence that this was on account of either his or Sustretovas’s ethnicity.
PETITION DENIED.3
3
The temporary stay of removal remains in place until the mandate issues. The
motion for a stay of removal is otherwise denied.
4