FILED
NOT FOR PUBLICATION
JAN 16 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL DIAZ NAVARRO No. 18-72249
Petitioner, Agency No. 073-833-519
v.
MEMORANDUM*
WILLIAM BARR, Attorney General
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 6, 2020,**
Pasadena, California
Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,*** District
Judge.
Manuel Diaz Navarro petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)
*
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).
*** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
denying his claims for asylum, for withholding of removal, and for protection
under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
§ 1252.
The BIA’s determination that Diaz Navarro was not more likely than not to
be tortured on return to Mexico, barring him from CAT relief, was supported by
substantial evidence. Most importantly, Diaz Navarro has not demonstrated that he
experienced relevant past torture, 8 C.F.R. § 1208.16(c)(3)(i), the “principal factor”
for determining whether future torture is likely. Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1080 (9th Cir. 2015). Specifically, the BIA’s conclusion that Diaz
Navarro did not experience past torture because he “did not sufficiently establish
that his attackers were police or government actors,” represented a reasonable view
of the facts given the threats Diaz Navarro received from cartel members and his
own uncertainty about the identity of his attackers. As such, the BIA’s finding is
binding on this panel. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017)
(“Factual findings are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”).
The BIA’s assessment of the remaining evidence of the likelihood of future
torture was equally reasonable and based in the record. First, the BIA’s conclusion
that any risk of future torture was mitigated by Diaz Navarro’s ability to relocate, 8
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C.F.R. § 1208.16(c)(3)(ii), was rational based on his prior relocation to La Paz.
Second, the BIA’s conclusion that the passage of time reduced the future risk of
torture was reasonable given the likely impact nine years has had on his attackers’
continued interest in harming him. See Matter of W-G-R-, 26 I. & N. Dec. 208,
224–25 (BIA 2014). Consideration of the passage of time was appropriate under 8
C.F.R. § 1208.16(c)(3), which requires consideration of “all evidence relevant to
the possibility of future torture.” Finally, the BIA’s conclusion that the State
Department’s country conditions report could not save Diaz Navarro’s CAT
application because it did not demonstrate a “particularized” threat to Diaz Navarro
was reasonable. Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006). In
short, the BIA’s conclusion that it was not more likely than not that Diaz Navarro
would be tortured upon returning to Mexico was supported by substantial
evidence.
As for Diaz Navarro’s other arguments, the court need not address Diaz
Navarro’s argument that the requirement that asylum seekers file an application
within one year of their entry into the United States, 8 U.S.C. § 1158(a)(2)(B), (D),
violates international law. This is because the BIA, in addition to finding that his
asylum application was untimely, found that Diaz Navarro was statutorily
ineligible for asylum because his 2006 conviction for robbery is categorically an
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aggravated felony theft offense, 8 U.S.C. § 1101(a)(43)(G), and therefore a per se
particularly serious crime barring his asylum claim. 8 U.S.C. §§ 1158(b)(2)(A)(ii),
1158(b)(2)(B)(i). Diaz Navarro waived any challenge to this finding by omitting it
from his brief, see Delgado-Hernandez v. Holder, 697 F.3d 1125, 1126 n.1 (9th
Cir. 2012), and Diaz Navarro’s asylum claim is accordingly barred regardless of
the one-year limit.
Finally, the court rejects Diaz Navarro’s argument that the “particularly
serious crime” provision of the Immigration and Nationality Act U.S.C. §
1231(b)(3)(B)(ii), is void for vagueness. This court recently held “that the
‘particularly serious crime’ provision is not unconstitutionally vague on its face”
because it “applies only to real-world facts.” Guerrero v. Whitaker, 908 F.3d 541,
545 (9th Cir. 2018). The particularly serious crime standard is similarly not
unconstitutionally vague as applied to Diaz Navarro because the IJ, whose
reasoning the BIA adopted, applied it to the “real-world facts” of Diaz Navarro’s
conviction for robbery, including consideration of Diaz Navarro’s own testimony
and the record of his conviction, and properly concluded that this gang robbery
involving force was a particularly serious crime.
PETITION DENIED.
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