Rosario Balderrama-Rivero v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
APR 19 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSARIO DE JESUS BALDERRAMA- No. 19-70982
RIVERO,
Agency No. A014-206-759
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 15, 2021**
Pasadena, California
Before: M. SMITH and IKUTA, Circuit Judges, and STEELE,*** District Judge.
*
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 John E. Steele, United States District Judge for the
Middle District of Florida, sitting by designation.
Rosario De Jesus Balderrama-Rivero petitions for review of a decision of the
Board of Immigration Appeals (BIA) dismissing his appeal of a decision of an
immigration judge (IJ) that he is ineligible for cancellation of removal, see 8
U.S.C. § 1229b(a), and deferral of removal under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
The IJ determined that Balderrama-Rivero is ineligible for cancellation of
removal due to his December 1992 conviction of an offense that is categorically an
aggravated felony. Balderrama-Rivero’s brief to the BIA did not raise the
argument that the IJ erred in reaching this conclusion, but we nevertheless deem
this issue to be exhausted because the BIA cited Matter of Burbano, 20 I. & N.
Dec. 872, 874 (BIA 1994) and explicitly adopted the IJ’s decision. See
Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008). In his opening
brief on appeal, Balderrama-Rivero again does not argue that the IJ’s determination
was in error, and therefore any such argument is waived. See Rizk v. Holder, 629
F.3d 1083, 1091 n.3 (9th Cir. 2011). We therefore deny Balderrama-Rivero’s
petition for review as to cancellation of removal on this ground.
The agency also determined that Balderrama-Rivero is not eligible for
deferral of removal under the CAT because he failed to carry his burden of proving
that “it is more likely than not” that he “would be tortured in the proposed country
2
of removal.” 8 C.F.R. § 1208.16(c)(2). This determination is supported by
substantial evidence, including that Balderrama-Rivero regularly traveled to
Mexico before 2005 and acknowledged he has never been harmed or threatened in
Mexico. Evidence that members of Balderrama-Rivero’s extended family, who
were involved in drug cartels, were harmed or killed by rival cartels, is not to the
contrary, given Balderrama-Rivero’s testimony that he has never been involved
with cartels. Country conditions evidence indicating widespread crime and some
human-rights abuses in Mexico, is not sufficiently particularized to compel the
conclusion that Balderrama-Rivero would more likely than not be the subject of
torture should he return to Mexico. See Lopez v. Sessions, 901 F.3d 1071, 1078
(9th Cir. 2018).1
PETITION DENIED.
1
Balderrama-Rivero’s motion to submit this case on the briefs, Dkt. No. 35,
is denied as moot.
3