Ngoli Nyirenda v. Loretta E. Lynch , 655 F. App'x 593 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NGOLI NYIRENDA, No. 15-70105
AKA Ngoli Vukani Nyirenda,
Agency No. A077-979-154
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 6, 2016
Pasadena, California
Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.
Petitioner Ngoli Nyirenda, a native and citizen of Zambia, petitions for
review of the Board of Immigration Appeals’ decision dismissing his appeal from
an immigration judge’s decision that denied his application for deferral of removal
under the Convention Against Torture. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The government’s argument that Nyirenda’s petition for review must be
dismissed because it is untimely is without merit. Nyirenda timely filed his
petition by depositing it in the Santa Ana City Jail’s mailing system on December
7, 2014. Nyirenda has submitted a declaration to that effect. The government
argues that Nyirenda’s declaration does not comply with Rule 25(a)(2)(C) of the
Federal Rules of Appellate Procedure because Nyirenda did not specifically state
that “first-class postage has been prepaid,” but Nyirenda stated that he “deposited
all of the copies of the filing in the Santa Ana mail system, using first-class
certified mail on December 7.” It is clear from Nyirenda’s declaration that
first-class postage was prepaid, which satisfies Rule 25(a)(2)(C).
Turning to the merits, we reject Nyirenda’s argument that the BIA applied
incorrect legal standards in reviewing his claim for deferral of removal under CAT.
There is nothing in the BIA’s opinion suggesting that it viewed either being
specifically targeted for torture or the existence of gross, flagrant, or mass
violations in Zambia as dispositive. The BIA discussed these issues as relevant
factors, as they are under 8 C.F.R. § 1208.16(c), but not as determinative
considerations.
Nyirenda’s argument that the BIA applied an incorrect standard by
considering whether he had shown gross, flagrant, or mass violations of the rights
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of LGBT persons specifically, rather than of human rights generally, was
sufficiently raised before the agency, see Kaganovich v. Gonzales, 470 F.3d 894,
897 (9th Cir. 2006), but does not afford Nyirenda relief. The BIA cited the correct
standard in its opinion and discussed violations of the rights of LGBT persons
specifically to determine whether Nyirenda had presented evidence demonstrating
a particularized risk. Nyirenda did not argue that he was at risk for another reason.
Contrary to the government’s contention, Nyirenda exhausted his argument
that evidence relevant to the possibility of future torture was not considered. On
the merits, however, the argument fails. Nyirenda has not demonstrated that the
BIA misstated the record, failed to “mention highly probative or potentially
dispositive evidence,” or that the BIA opinion otherwise indicates that relevant
evidence was ignored or overlooked. Cole v. Holder, 659 F.3d 762, 772 (9th Cir.
2011).
Lastly, substantial evidence supports the BIA’s determination that Nyirenda
is not entitled to CAT relief. Nyirenda has not shown that “it is more likely than
not” that he will be tortured if removed to Zambia. 8 C.F.R. § 1208.16(c)(2).
Nyirenda’s past experiences in Zambia, though disturbing, do not rise to the level
of torture. See 8 C.F.R. § 1208.18(a)(1). Nyirenda’s country conditions evidence
demonstrates that there are instances of violence, including torture, against LGBT
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persons in Zambia, along with an extremely hostile environment to homosexuality,
but Nyirenda has failed to establish that the risk he faces is as great as the standard
required for CAT relief. He may have demonstrated that he is more likely than not
to experience discrimination and persecution, but not torture.
PETITION DENIED.
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