Ricardo Cruz-Calmo v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO CRUZ-CALMO, No. 20-72841
Petitioner, Agency No. A202-065-865
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 12, 2022
San Francisco, California
Before: BYBEE and R. NELSON, Circuit Judges, and RAKOFF,** District Judge.
Ricardo Cruz-Calmo, a citizen of Guatemala, petitions for review of a Board
of Immigration Appeals (BIA) order upholding the denial of his claims for asylum
and withholding of removal under the Immigration and Nationality Act and
protection under the Convention Against Torture (CAT). We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
8 U.S.C. § 1252 and deny the petition.
During his time in the United States, Cruz-Calmo was convicted in
Washington state court for driving under the influence (DUI). The BIA held that his
DUI conviction was a “particularly serious crime” that barred Cruz-Calmo’s
eligibility for asylum and withholding of removal. It also denied CAT relief because
Cruz-Calmo had not shown it was more likely than not that he would be tortured
with the acquiescence of the government if returned to Guatemala. On appeal, Cruz-
Calmo challenges the agency’s “particularly serious crime” determination and
argues that the denial of his CAT claim is not supported by substantial evidence.
1. “Where the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994),
and does not express disagreement with any part of the [Immigration Judge’s (IJ)]
decision, the BIA adopts the IJ’s decision in its entirety” and we review both
decisions. Joseph v. Holder, 600 F.3d 1235, 1239–40 (9th Cir. 2010). Though we
lack jurisdiction over the ultimate decision that Cruz-Calmo committed a
particularly serious crime, we retain jurisdiction to “determine whether the [agency]
applied the correct legal standard.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020)
(quoting Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019)). Our review is
“limited to ensuring that the agency relied on the ‘appropriate factors’ and ‘[]proper
evidence’ to reach [its] conclusion.” Id. (first alteration in original) (quoting
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)). We reverse
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“only if the BIA acted arbitrarily, irrationally, or contrary to law.” Id. (quotation
marks omitted) (quoting Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012) (per
curiam)).
Cruz-Calmo argues that the agency created a per se category of particularly
serious crimes for all DUIs. We disagree. The IJ never concluded that all DUIs are
necessarily “particularly serious.” Instead, the IJ stated the elements of Cruz-
Calmo’s DUI offense and explained how those elements “potentially bring the
offense within the ambit of a particularly serious crime.” See Bare, 975 F.3d at 961–
62 (quotation marks omitted) (quoting In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A.
2007), overruled in part on other grounds by Blandino-Medina v. Holder, 712 F.3d
1338, 1347–48 (9th Cir. 2013)). The agency properly concluded that the risks
potentially posed by those elements meant that Cruz-Calmo’s DUI conviction passed
the first gatekeeping factor of the “particularly serious crime” analysis.
Cruz-Calmo also contends that when evaluating the other factors, the IJ
ignored favorable evidence. His contention boils down to a disagreement with the
IJ’s weighing of relevant evidence, which was not arbitrary, irrational, or contrary
to law. See id. at 961.1
2. We review the agency’s denial of CAT relief for substantial evidence.
1
Cruz-Calmo affirmatively waived the argument that the agency erred by relying on
the police report. See Alcaraz-Enriquez v. Garland, 19 F.4th 1224, 1231 (9th Cir.
2021).
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Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th Cir. 2015). “Under the
substantial evidence standard, ‘administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.’”
Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (citing 8 U.S.C.
§ 1252(b)(4)(B)).
Cruz-Calmo argues that the agency failed to consider all the evidence because
it found that his past harm was limited to “kidnapping and a singular beating.” But
we need not decide whether the record compels a different conclusion because the
agency assumed that the harm suffered by Cruz-Calmo amounted to torture. The
agency concluded that Cruz-Calmo did not qualify for CAT protection because he
could safely relocate to another part of Guatemala and had not established that the
government would acquiesce to his torture. The agency’s conclusion that Cruz-
Calmo could relocate was also proper. Cruz-Calmo’s family has lived safely in
another town since 2015. And although Cruz-Calmo testified that he wouldn’t be
able to farm where his wife lives, he also stated that other people in town farm for
an occupation. As for Cruz-Calmo’s contention that he could be found by his
persecutors, he provides no reason to believe that rival party members would still be
looking for him seven years later (especially given the fact that the rival party has
disbanded).
Finally, Cruz-Calmo argues that evidence about the government’s failure to
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protect indigenous people establishes the government’s acquiescence to his potential
torture. But the country conditions evidence also shows that the Guatemalan
government is taking steps to combat violence against indigenous people, including
passing protective laws, creating specialized agencies, founding model police forces
in indigenous communities, and recognizing indigenous laws. Because “a general
ineffectiveness on the government’s part to investigate and prevent crime will not
suffice to show acquiescence,” the record fails to compel the conclusion that Cruz-
Calmo qualifies for CAT protection. See Xochihua-Jaimes v. Barr, 962 F.3d 1175,
1184 (9th Cir. 2020) (quoting Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir.
2016)).
PETITION DENIED.
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