FILED
NOT FOR PUBLICATION
FEB 9 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN KRISTOFFER LARSGARD, No. 19-72851
Petitioner, Agency No. A205-039-932
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2021**
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
John Larsgard, a native and citizen of Norway, petitions for review of a
decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal of
the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of
*
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).
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252, and the petition is dismissed in part and denied
in part.
1. Petitioner was properly placed in asylum-only proceedings. Petitioner
entered the United States on December 20, 2010, under the Visa Waiver Program
(“VWP”). He later received a B1 visa. The VWP allows tourists to enter the
United States without visas “for 90 days or less” from designated countries. 8
U.S.C. § 1187(a). However, as a condition of entry, tourists waive “any right
. . . to contest, other than on the basis of an application for asylum, any action for
removal.” Id. § 1187(b); see also Momeni v. Chertoff, 521 F.3d 1094, 1096 (9th
Cir. 2008). Petitioner applied for the B1 visa more than 90 days after he was
admitted to the United States under the VWP. Cf. Freeman v. Gonzales, 444 F.3d
1031, 1036–37 (9th Cir. 2006). A visa thus procured does not allow Petitioner to
escape the asylum-only provisions of the VWP.
2. We lack jurisdiction to consider the agency’s denial of asylum and
withholding of removal. The IJ denied Petitioner’s application for asylum and
withholding of removal on the ground that Petitioner had been convicted of a
Particularly Serious Crime (“PSC”). Before the BIA, Petitioner did not challenge
2
the IJ’s finding that his prior convictions qualified as PSCs. Rather, he only
challenged the finality of his convictions for immigration purposes.
In this appeal, Petitioner does not challenge the BIA’s determination that his
convictions are final for immigration purposes, nor does he contend that he was not
convicted of a PSC. Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (a
petitioner waives an issue by failing to raise it in the opening brief). We therefore
dismiss Petitioner’s challenge to the BIA’s denial of asylum and withholding of
removal for lack of jurisdiction. See 8 U.S.C. § 1252(d)(1).
3. We review denials of CAT relief for “substantial evidence and will uphold
a denial supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir.
2016) (quotation marks and citation omitted). Petitioner is entitled to relief under
CAT if “it is more likely than not that he . . . would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 208.16(c)(2).
Substantial evidence supports the agency’s CAT determination. First, there
is no evidence that Petitioner was tortured in the past or reasonably could expect to
be tortured in the future. Second, Petitioner could relocate to avoid harm. The
3
record thus does not compel the conclusion that Petitioner will “more likely than
not” face torture upon removal to Norway.1
DISMISSED IN PART; DENIED IN PART.
1
Petitioner’s Motion for Stay of Removal [DE 5] is denied as moot. The
temporary stay of removal remains in effect until issuance of the mandate.
4