Rene Cabrera v. Eric Holder, Jr. ( 2014 )

FILED
NOT FOR PUBLICATION FEB 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENE MAURICIO CABRERA, No. 10-71455
Petitioner, Agency No. A073-945-579
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 12, 2014**
San Francisco, California
Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and ADELMAN,
District Judge.***
Petitioner Rene Mauricio Cabrera petitioned for review of a Board of
Immigration Appeals (BIA) order upholding the decision of the immigration judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
(IJ) denying his applications for asylum, withholding of removal, and protection
under the Convention Against Torture. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We deny the petition for review.
Because the BIA adopted and affirmed, citing to Matter of Burbano, 20 I. &
N. Dec. 872, 874 (BIA 1994), the IJ’s decision with respect to Cabrera’s asylum
application, we review that adopted portion of the IJ’s decision as if it were the
decision of the BIA. See Mutuku v. Holder, 600 F.3d 1210, 1212 (9th Cir. 2010).
We review the IJ’s factual findings for substantial evidence. Baghdasaryan v.
Holder, 592 F.3d 1018, 1022 (9th Cir. 2010).
Although Cabrera presented credible evidence that his half-brother may have
been killed in a politically motivated attack, substantial evidence supported the IJ’s
conclusion that any attacks on Cabrera were not politically motivated.
Furthermore, Cabrera never reported the incidents to the police, and there was no
evidence that the government was unable or unwilling to protect Cabrera from
harm. Cf. Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004) (noting that
whether the applicant reported the incidents to the police should be considered
when the alleged persecution occurred at the hands of non-governmental actors).
In the absence of more specific evidence of harm on account of a protected ground,
we conclude that substantial evidence supported the IJ’s decision to deny Cabrera’s
application for asylum. For the foregoing reasons, and because Cabrera did not
present any evidence that he is likely to suffer torture if he were to return to El
Salvador, Cabrera is also ineligible for withholding of removal and CAT
protection. See Fernandes v. Holder, 619 F.3d 1069, 1075 n.6 (9th Cir. 2010); 8
C.F.R. § 1208.16(c)(2).
Cabrera also petitions for review of the BIA’s decision upholding the IJ’s
order granting the government’s motion to pretermit his application for
cancellation of removal. We review de novo the question whether petitioner is
entitled to cancellation of removal. Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194
(9th Cir. 2006). Cabrera has twice been convicted under California Penal Code
section 273.5, which is a “crime of domestic violence” under 8 U.S.C.
§ 1227(a)(2). Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010);
Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1056 (9th Cir. 2010). Cabrera is
therefore statutorily ineligible for cancellation. See 8 U.S.C. § 1229b(b)(1)(C).
PETITION FOR REVIEW DENIED.