FILED
NOT FOR PUBLICATION JAN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIO ABRAHAM BARAHONA No. 12-71692
SORIANO,
Agency No. A096-985-795
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 17, 2014
San Francisco, California
Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.
Emilio Abraham Barahona Soriano petitions for review of a Board of
Immigration Appeals (BIA) decision denying him withholding of removal and
deferral of removal under the Convention Against Torture (CAT).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We reject Barahona’s claim that the BIA erred in determining that his prior
state conviction was for a particularly serious crime.1 To the extent Barahona
contends that the BIA erred in assessing the facts underlying that conviction, we
lack jurisdiction to consider his claims. Pechenkov v. Holder, 705 F.3d 444, 448
(9th Cir. 2012). We have jurisdiction over the remainder of Barahona’s arguments
under 8 U.S.C. §§ 1252(a)(1), 1252(a)(2)(D).
We reject Barahona’s argument that the BIA relied solely on the “police
report” to the exclusion of other relevant evidence in determining that his state
conviction was for a particularly serious crime. The BIA stated that it considered
Barahona’s “conviction record,” a collection of documents including an “Abstract
of [Judgment], criminal information, a verbatim transcript of the respondent’s
guilty plea colloquy, hospital records, and witness statements.” All of those
documents are “reliable information” that the BIA may consider under In re N-A-
M-, 24 I. & N. Dec. 336, 342 (BIA 2007).
Nor did the BIA err in relying on N-A-M- and Matter of R-A-M-, 25 I. & N.
Dec. 657 (BIA 2012), in determining whether Barahona’s conviction was for a
particularly serious crime. Although neither case analyzed a crime of domestic
1
Barahona did not argue that the BIA erred by failing to identify which
conviction was a particularly serious crime in his opening brief, and therefore he
waived the issue. Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).
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violence, each was a precedential decision articulating the general standard for
evaluating whether a prior offense was a particularly serious crime, and the BIA
correctly applied this framework. See 8 C.F.R. § 1003.1(g) (explaining the
precedential effect of designated BIA opinions). The BIA did not rely on In re S-
V-, 22 I. & N. Dec. 1306 (BIA 2000), and so we need not consider it here. See
Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009).
The BIA’s rejection of Barahona’s CAT claim was supported by substantial
evidence in the record, including the country report, which recounted the
Salvadoran government’s efforts to protect homosexuals from discrimination. The
BIA did not err in rejecting Barahona’s CAT claim on the grounds that there was
insufficient evidence of government acquiescence in torture and that Barahona had
not demonstrated that he personally was more likely than not to be tortured. The
record does not compel a contrary conclusion, because Barahona did not establish
either “the likelihood that any one member of [the LGBT community] will be
tortured—as opposed to being persecuted or discriminated against,” Alphonsus v.
Holder, 705 F.3d 1031, 1049 (9th Cir. 2013), or that the police refuse to investigate
or prosecute crimes against homosexuals.
Finally, Barahona’s due process claim fails because the record demonstrates
that Barahona received “a full and fair opportunity to be represented by counsel, to
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prepare an application for [asylum or other] relief, and to present testimony and
other evidence in support of the application,” which is all that due process requires.
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926–27 (9th Cir. 2007). Nothing in
the record indicates that the BIA or Immigration Judge (IJ) improperly prejudged
Barahona’s CAT claim or failed to consider the lengthy written expert declaration
he submitted regarding violent incidents against gays in El Salvador, nor could his
counsel articulate any way in which the expert’s oral testimony would have added
to the written declaration that the IJ admittedly considered in detail. Cf. Zolotukhin
v. Gonzales, 417 F.3d 1073, 1075–77 (9th Cir. 2005); Lopez-Umanzor v. Gonzales,
405 F.3d 1049, 1057 (9th Cir. 2005).
DISMISSED IN PART; DENIED IN PART.
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