FILED
NOT FOR PUBLICATION
AUG 30 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO CARLOS SILVA-PEREIRA, Nos. 17-71108
18-70312
Petitioner,
Agency No. A095-743-748
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 28, 2019**
Seattle, Washington
Before: HAWKINS, McKEOWN, and BYBEE, Circuit Judges.
El Salvador native Roberto Carlos Silva-Pereira requests review of two
orders from the Board of Immigration Appeals (BIA): first, the denial of his
motion to reopen based on a change in country conditions, and, second, the limited
*
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).
reissued order ordering him removed to El Salvador and denying protection under
the Convention Against Torture (CAT). We deny both petitions for review.
1. Silva-Pereira makes no argument in his brief about the BIA’s denial of his
motion to reopen. It is therefore waived. See Martinez-Serrano v. INS, 94 F.3d
1256, 1259–60 (9th Cir. 1996).
Even if review of the denial of his motion to reopen were not waived, the
BIA did not abuse its discretion in denying the motion. See Agonafer v. Sessions,
859 F.3d 1198, 1203 (9th Cir. 2017). Although Silva-Pereira’s motion to reopen
was untimely and numerically barred, see 8 U.S.C. § 1229a(c)(7), Silva-Pereira
asserted a change in country conditions, see id. § 1229a(c)(7)(C)(ii). To prevail on
this ground, the movant must present new, material evidence establishing changed
country conditions, together with previously submitted evidence, demonstrate
“prima facie eligibility for the relief sought.” Agonafer, 859 F.3d at 1204 (citation
omitted). The new evidence—a newspaper article in which a witness revealed the
identity of one of Silva-Pereira’s co-conspirators in a murder—does not exculpate
Silva-Pereira or speak to the truth or falsity of the criminal charges he faces in El
Salvador or Guatemala. The BIA did not abuse its discretion by concluding that
this evidence did not demonstrate changed country conditions and that Silva-
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Pereira failed to demonstrate prima facie eligibility for asylum or deferral of
removal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013).
2. Silva-Pereira also requests review of the BIA’s limited reissued order, which
ordered him removed to El Salvador and denied deferral of removal. He argues
that the BIA erred in denying deferral of removal because he contends he will be
killed in prison if returned to El Salvador.
“We review ‘denials of asylum, withholding of removal, and CAT relief for
substantial evidence and will uphold a denial supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’” Wang v. Sessions,
861 F.3d 1003, 1007 (9th Cir. 2017) (quoting Huang v. Holder, 744 F.3d 1149,
1152 (9th Cir. 2014)). Factual findings “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§1252(b)(4)(B). Thus, we must uphold the BIA’s decision unless we “determine
‘that the evidence not only supports a contrary conclusion, but compels it—and
also compels the further conclusion’ that the petitioner meets the requisite standard
for obtaining relief.” Huang, 744 F.3d at 1152 (alterations omitted) (quoting
Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014)).
The BIA affirmed the immigration judge’s findings that Silva-Pereira would
be able to utilize the criminal justice system and that, given his high-profile status,
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it is unlikely that he would be harmed or otherwise deprived of fair treatment. This
was not an abuse of discretion because ordinary prosecution and incarceration do
not amount to torture, see Lin v. Holder, 610 F.3d 1093, 1098 (9th Cir. 2010), and
Silva-Pereira presented only speculative testimony that he would be killed by a
fellow inmate if imprisoned, see Blandino-Medina v. Holder, 712 F.3d 1338, 1348
(9th Cir. 2013) (requiring a petitioner to show that he would “more likely than not”
be tortured through “hard evidence” and not merely “a series of worst-case
scenarios”). Moreover, Silva-Pereira’s wife and mother-in-law, who were indicted
on similar charges to Silva-Pereira, were tried and eventually acquitted.
The petitions for review are DENIED.
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