NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTEBAN HERNANDEZ, No. 15-72945
15-73559
Petitioner, 16-71207
v. Agency No. A092-330-324
WILLIAM P. BARR, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 5, 2020
San Francisco, California
Before: PAEZ, BEA, and FRIEDLAND, Circuit Judges.
Esteban Hernandez petitions for review of the Board of Immigration
Appeals (“BIA”) decision denying him relief from removal in the form of
withholding of removal under 8 U.S.C. § 1231(b)(3) and deferral of removal under
the Convention Against Torture (“CAT”). He makes an additional claim that he is
entitled to an injunction against removal under the state-created danger doctrine.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We have jurisdiction under 8 U.S.C. § 1252.1 We dismiss his petition in part and
deny it in part.
1. We lack jurisdiction to consider Hernandez’s claim that the Immigration
Judge (“IJ”) did not consider the appropriate factors in making her determination
that Hernandez had been convicted of a particularly serious crime and thus was
ineligible for withholding of removal because Hernandez did not present this
argument to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Hernandez’s argument that we may address the claim notwithstanding his failure to
exhaust it before the BIA is meritless. Although “we may review any issue
addressed on the merits by the BIA, regardless of whether the petitioner raised it
before the agency,” Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018), the BIA
1
Section 1252 provides that “[n]otwithstanding any other provision of
law . . . no court shall have jurisdiction to review any final order or removal against
an alien who is removable by reason of having committed” certain criminal
offenses, but preserves jurisdiction over “constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals.” 8
U.S.C. § 1252(a)(2)(C)–(D). The United States Supreme Court recently granted
certiorari in Nasrallah v. Barr, No. 18-1432, which presents the question
“[w]hether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess
jurisdiction to review factual findings underlying denials of withholding (and
deferral) of removal relief.” Petition for a Writ of Certiorari, Nasrallah v. Barr,
No. 18-1432 (May 14, 2019), cert. granted, 140 S. Ct. 428 (Oct. 18, 2019). We
decide this case in accordance with current Ninth Circuit precedent, under which
we have jurisdiction over Hernandez’s challenge to the denial of deferral of
removal under the CAT. See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir.
2012). Because any determination by the Supreme Court that we lack jurisdiction
would have no effect on the outcome of this case, we proceed under our existing
caselaw.
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did not address this claim on the merits. The BIA concluded that Hernandez
waived his claim that his conviction for assault with a deadly weapon was not a
particularly serious crime because he did “not address[] the issue on appeal.” The
BIA’s statement that it “affirm[ed] the Immigration Judge’s determination that
[Hernandez’s] convictions constituted ‘particularly serious crimes’” was not a
decision on the merits because the only reason given for affirming the IJ was that
Hernandez had waived the issue. We therefore lack jurisdiction over this
unexhausted claim.
2. The agency considered all of the relevant evidence pertaining to
Hernandez’s application for deferral of removal under CAT. The BIA stated that it
agreed with the IJ “that there is insufficient evidence in the record” establishing
that Hernandez is entitled to deferral of removal. Such a “general statement that the
BIA considered all the evidence . . . suffice[s] where nothing in the record
indicates a failure to consider all the evidence,” Gonzalez-Caraveo v. Sessions, 882
F.3d 885, 894 (9th Cir. 2018)—and there is no such contrary indication here.
Further, the IJ’s decision—which the BIA adopted—shows a consideration
of all the relevant evidence. Hernandez is plainly wrong that the IJ failed to
consider Dr. Shirk’s testimony. The IJ referenced Dr. Shirk’s testimony as it
related to “the general state of safety and security in Mexico” and more specifically
as it discussed the risk of violence to “those with personal connections to organized
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crime groups.” Hernandez is also wrong that the IJ ignored his documentary
evidence on country conditions, including State Department and NGO reports on
human rights in Mexico. The IJ referenced this documentary evidence in in her
decision, noting the “human rights reports on Mexico” that were in the record.
Reports contained in Exhibits 6 and 20, which the IJ cited specifically, included the
reports Hernandez alleges were ignored. Additionally, the IJ’s decision noted
Exhibit 16, which contained a 2012 report co-authored by Dr. Shirk titled “Drug
Violence in Mexico.” The IJ was not required to discuss each of these reports in
depth. See Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (“When nothing in
the record or the BIA's decision indicates a failure to consider all the evidence,
a general statement that the agency considered all the evidence before it may be
sufficient.”) (quotation marks and alterations omitted). The record shows that the
reports and expert testimony were considered, and the IJ’s decision was not naïve
about the general threat of violence and torture in Mexico.
3. The agency’s determination that Hernandez is not likely to be tortured in
Mexico was supported by “substantial evidence.” See Blandino-Medina v. Holder,
712 F.3d 1338, 1348 (9th Cir. 2013). Key to the IJ’s reasoning (as adopted by the
BIA) that it is unlikely Hernandez will be tortured in Mexico are the findings that
there is no evidence that information about his denunciations “will reach members
of the Arellano Felix cartel or his father’s associates” and that “there is no
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evidence that his father, the government, or the cartel is even searching for him.”
The record evidence does not “compel a different conclusion from the one reached
by the [agency].” Xiao Fei Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011).
Interactions between Hernandez and law enforcement agencies have been
limited. Hernandez spoke to two Department of Homeland Security (“DHS”)
investigators more than six years ago, and his letters to other law enforcement
agencies have been met with form letter replies. The record contains no evidence
any agency has treated Hernandez as an active cooperator, and more importantly,
there is no evidence that his limited interactions with law enforcement have been
leaked to the cartel or anyone linked to his father.2
4. Hernandez is not entitled to an injunction against removal under the state-
created danger doctrine. Although Hernandez did not raise this issue to the BIA,
we have jurisdiction to address it. See Morgan v. Gonzales, 495 F.3d 1084, 1089–
90 (9th Cir. 2007). The government may not remove a petitioner to a foreign
country where the government, either by entering into a “special relationship” with
the petitioner, or through affirmative government action, created the risk that the
petitioner will be in danger from third parties if removed. See Wang v. Reno, 81
2
Although Hernandez’s counsel pointed at oral argument to a letter to the
editor in the Los Angeles based Spanish-language newspaper, La Opinión, any
argument regarding that letter was forfeited because it was not raised in
Hernandez’s opening brief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.
2011).
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F.3d 808, 818 (9th Cir. 1996). Hernandez does not have a “special relationship”
with the United States government that could entitle him to an injunction;
Hernandez’s only relevant interaction with the government consisted of his
interaction with DHS investigators more than six years ago. Further, like the
petitioner in Morgan, Hernandez is unable to identify “affirmative government
misconduct,” “gross negligence, [or] deliberate indifference,” on behalf of the
government that increased his risk of danger if he is returned to Mexico. See
Morgan, 495 F.3d at 1093 (quoting Wang, 81 F.3d at 818).
5. Hernandez’s opening brief did not discuss the BIA’s denials of his motions
to reconsider or reopen his removal proceedings. He therefore waived any
argument that these motions were improperly denied. See Greenwood v. FAA, 28
F. 3d 971, 977 (9th Cir. 1994).
Hernandez’s petition for review is DISMISSED regarding his application
for withholding of removal and DENIED in all other respects.
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