NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS MANUEL HERNANDEZ- No. 13-74044
CASTANEDA,
Agency No. A047-821-387
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2016**
Pasadena, California
Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.
Petitioner Luis Manuel Hernandez-Castaneda, a native and citizen of El
Salvador, seeks review of the Board of Immigration Appeals’ (“Board”) decision
dismissing his appeal of an immigration judge’s (“IJ”) order denying his
*
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).
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252,
Bromfield v. Mukasey, 543 F.3d 1071, 1075 (9th Cir. 2008), and deny the petition.
As a threshold matter, Hernandez-Castaneda contests whether he is
removable based on a July 2006 conviction for methamphetamine possession. But
Hernandez-Castaneda conceded the drug conviction during the pleading stage of
his removal proceedings. The Board was therefore entitled to rely on this
concession as conclusive evidence that he is removable. Perez-Mejia v. Holder,
663 F.3d 403, 416 (9th Cir. 2011). Because there is no evidence that a state court
has expunged Hernandez-Castaneda’s conviction, he is not eligible for relief under
Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000), overruled
prospectively by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc).
We next turn to the Board’s denial of Hernandez-Castaneda’s application for
asylum. To be eligible for asylum, Hernandez-Castaneda must show a “well-
founded fear of [future] persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42). We review the Board’s findings of fact for substantial evidence.
Zhiqiang Hu v. Holder, 652 F.3d 1011, 1016 (9th Cir. 2011). To reverse the
Board’s decision, we must find that “the evidence in the record compels a
reasonable factfinder to conclude that the [Board’s] decision is incorrect.”
2
Baghdasaryan v. Holder, 592 F.3d 1018, 1022 (9th Cir. 2010) (internal quotation
marks omitted).
Substantial evidence supports the Board’s decision. While Hernandez-
Castaneda has expressed a subjective fear that members of the MS gang, or a rival
gang, would kill him if he were returned to El Salvador, the record lacks objective
evidence to support this fear. Nor does the record indicate that his disabled status
would render him a target for persecution. At most, a State Department country
report notes that persons with disabilities in El Salvador are sometimes not
considered for work, and that laws prohibiting discrimination against the disabled
are not enforced. Because the record lacks evidence either that Hernandez-
Castaneda would be singled out for persecution, or that there exists a systematic
pattern of persecution against former (disabled) gang members, see Wakkary v.
Holder, 558 F.3d 1049, 1060–61 (9th Cir. 2009), the Board did not err in
concluding that he failed to demonstrate an objectively reasonable fear of future
persecution.
By failing to satisfy the standard of proof for asylum, Hernandez-Castaneda
cannot satisfy the more demanding standard for withholding of removal. See
Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004).
Finally, we address Hernandez-Castaneda’s claim for relief under the CAT.
“To qualify for CAT relief, a petitioner must establish that ‘it is more likely than
3
not that he or she would be tortured if removed to the proposed country of
removal.’” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R.
§ 208.16(c)(2)). We review the Board’s “findings underlying its determination that
an applicant is not eligible for relief under the CAT . . . for substantial evidence.”
Id. The record lacks evidence that Hernandez-Castaneda is likely to be tortured by
government forces if he is returned to El Salvador, or that the El Salvadoran
government would acquiesce in torture perpetrated by gang members.
Accordingly, we find that the Board did not err in denying Hernandez-Castaneda
CAT relief.1
PETITION FOR REVIEW DENIED.
1
Hernandez-Castaneda did not clearly raise the issue of his competency or
other claims in his opening brief, so we deem any additional arguments waived.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
4