Jose Valencia v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALVAREZ VALENCIA, No. 14-72613
Petitioner, Agency No. A078-265-714
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 13, 2020**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY, *** District
Judge.
Jose Alvarez Valencia, a native and citizen of Mexico, petitions for review
of a decision by the Board of Immigration Appeals (“BIA”) affirming an
*
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 Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
immigration judge’s (“IJ”) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Alvarez Valencia argues that he suffered past persecution, which gives rise
to a presumption of a well-founded fear of future persecution. Reviewing for
substantial evidence, Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005),
we conclude that the BIA did not err in affirming the IJ’s finding that Alvarez
Valencia did not suffer past persecution.
First, because threats alone generally do not constitute past persecution, Lim
v. INS, 224 F.3d 929, 936 (9th Cir. 2000), the BIA did not err in holding that the
threats Alvarez Valencia suffered did not rise to the level of persecution. Second,
substantial evidence supports the BIA’s finding that the harm Alvarez Valencia
suffered was not on account of his family membership. The timing and content of
the threats indicate that the Knights Templar targeted Alvarez Valencia to obtain
information, not because of a protected ground. See Zetino v. Holder, 622 F.3d
1007, 1015–16 (9th Cir. 2010) (holding that substantial evidence supported finding
that there was no nexus to a protected ground where individuals who wanted
family land murdered the petitioner’s family members).
The BIA did not err in failing to consider whether Alvarez Valencia was
harmed on account of his political opinion and whether the Knights Templar acted
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as the de facto government. Even if the BIA failed to consider these elements of
Alvarez Valencia’s asylum claim, a decision on these elements was not necessary
because Alvarez Valencia’s claim was doomed by the BIA’s finding that the harm
he suffered did not rise to the level of persecution. 1 INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (“As a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they reach.”).
Because the BIA did not err in upholding his asylum denial, Alvarez
Valencia necessarily fails to establish eligibility for withholding of removal. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
2. We review factual findings underlying a denial of protection under the CAT
for substantial evidence. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).
The evidence Alvarez Valencia presented does not compel the finding that he is
more likely than not to be tortured in Mexico because he was not tortured in the
past and did not present particularized evidence showing he would be at special
risk of torture in the future. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152
(9th Cir. 2010) (finding that “generalized evidence of violence and crime in
Mexico” was “insufficient to meet [the CAT] standard” because it was “not
1
It was similarly unnecessary for the BIA to analyze whether the Knights Templar
was the de facto government as part of Alvarez Valencia’s claim for protection
under the CAT. Because, as discussed below, Alvarez Valencia did not establish
he was more likely than not to be tortured in Mexico, the BIA did not need to
address whether the Knights Templar acted as the de facto government.
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particular to Petitioners”).
3. Finally, we hold that Alvarez Valencia waived his due process claim by
failing to present supporting arguments in his briefing. Ghahremani v. Gonzales,
498 F.3d 993, 997 (9th Cir. 2007) (“[A]n issue referred to in the appellant’s
statement of the case but not discussed in the body of the opening brief is deemed
waived.”).
PETITION DENIED.
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