Sergio Leyva v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO LEYVA, No. 18-70766
Petitioner, Agency No. A040-005-586
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Sergio Leyva, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026,
1031 (9th Cir. 2014). We review de novo claims of due process violations in
immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We
deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Leyva failed
to establish he suffered harm that rises to the level of persecution. See Li v.
Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (“Our caselaw
characterizes persecution as an extreme concept, marked by the infliction of
suffering or harm . . . in a way regarded as offensive.” (citation and internal
quotation marks omitted)); see also Baghdasaryan v. Holder, 592 F.3d 1018, 1023
(9th Cir. 2010) (an applicant who alleges past persecution has the burden of
proving that the treatment rises to the level of persecution).
Substantial evidence also supports the agency’s determination that Leyva
failed to establish that the harm he fears in Mexico would be on account of a
protected ground, specifically, his family-based social group. See INS v. Elias-
Zacarias, 502 U.S. 478, 483 (1992) (an applicant “must provide some evidence of
[motive], direct or circumstantial”). Leyva does not raise, and therefore waives,
any challenge to the BIA’s determination that fear of future recruitment by a
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criminal organization and imputed membership in a criminal organization are not
bases for asylum.
In light of this disposition, we need not reach Leyva’s contentions as to
whether he was convicted of a crime constituting an aggravated felony or a
particularly serious crime. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.
2004) (“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.” (internal
citation and quotation marks omitted)).
Thus, Leyva’s asylum and withholding of removal claims fail.
Substantial evidence supports the agency’s denial of CAT relief because
Leyva failed to show it is more likely than not he would be tortured by or with the
consent or acquiescence of the government if returned to Mexico. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
We reject as unsupported by the record Leyva’s contentions that the BIA
misapplied the law or otherwise erred in its analysis of his asylum, withholding of
removal, and CAT claims. Leyva’s contention that the BIA did not consider
country conditions evidence fails. See Najmabadi v. Holder, 597 F.3d 983, 990
(9th Cir. 2010) (“[BIA] does not have to write an exegesis on every contention.”
(citation and internal quotation marks omitted)); Fernandez v. Gonzales, 439 F.3d
592, 603 (9th Cir. 2006) (concluding petitioner did not overcome the presumption
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that the BIA reviewed the record). We lack jurisdiction to consider Leyva’s
contention that the IJ did not properly consider country conditions reports. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to review claims not presented to the agency). Thus, Leyva’s request to remand to
the BIA or IJ, raised in his opening brief, is denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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