NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR HUGO VALENZUELA CRUZ, No. 20-71305
Petitioner, Agency No. A215-562-253
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2021**
San Francisco, California
Before: HAWKINS and MILLER, Circuit Judges, and MORRIS,*** District
Judge.
Hector Valenzuela Cruz petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s (“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 Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
order denying his applications for withholding of removal and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252(a)(1) and deny the petition.
Valenzuela Cruz contends that the BIA erred in its determination that he had
been convicted of a “particularly serious crime” rendering him ineligible for
withholding of removal under the Immigration and Nationality Act or CAT. 8
U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Our
review is limited to “whether ‘the agency relied on the appropriate factors and proper
evidence.’” Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (quoting
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)).
The BIA did not abuse its discretion. Arbid v. Holder, 700 F.3d 379, 383 (9th
Cir. 2012) (per curiam). The BIA conducted a case-specific analysis under Matter
of Frentescu, 18 I. & N. Dec. 244 (B.I.A. 1982), when evaluating Valenzuela Cruz’s
18 U.S.C. § 922(a)(6) conviction. See Anaya-Ortiz v. Holder, 594 F.3d 673, 679
(9th Cir. 2010). In doing so, the BIA permissibly considered Valenzuela Cruz’s
testimony and did not misconstrue the record regarding the facts and circumstances
underlying his conviction or the sentence imposed. See id. at 678–79. Further,
contrary to Valenzuela Cruz’s contention, the BIA considered Valenzuela Cruz’s
testimony regarding his mental state but found that it did not lessen the seriousness
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of the offense. Cf. Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 (9th Cir. 2018)
(agency erred by refusing to consider evidence regarding mental state).
Nor did the BIA err in its determination that Valenzuela Cruz failed to
establish eligibility for CAT protection. The BIA’s characterization of Valenzuela
Cruz’s arguments and evidence regarding his sexual orientation did not amount to
impermissible fact-finding. See Perez-Palafox v. Holder, 744 F.3d 1138, 1145 (9th
Cir. 2014). The BIA was not required to discuss every piece of evidence, and
nothing in its decision indicates that it failed to consider or misconstrued any of the
evidence relevant to Valenzuela Cruz’s CAT claim. See Villegas Sanchez v.
Garland, 990 F.3d 1173, 1182–83 (9th Cir. 2021). Indeed, the BIA specifically
acknowledged the expert testimony and referenced the country conditions evidence.
The record does not compel the conclusion that Valenzuela Cruz would more likely
than not be tortured with government acquiescence if returned to Mexico. See Vitug
v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013).
Finally, Valenzuela Cruz has not demonstrated that the IJ deprived him of a
full and fair hearing or that the BIA erred in its review of his due process claim. See
Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056 (9th Cir. 2005) (“Whether the IJ’s
actions prevented the introduction of significant testimony is critical to the ultimate
question whether the alien had a reasonable opportunity to present evidence.”).
Although the BIA stated that there was no clear error in the IJ’s assessment of the
3 20-71305
record, the BIA’s decision as a whole demonstrates that it reviewed de novo all legal
claims, including Valenzuela Cruz’s due process claim, see 8 C.F.R.
§ 1003.1(d)(3)(ii), and the BIA adequately addressed Valenzuela Cruz’s
contentions.
The motion for a stay of removal [Docket Entry Nos. 1, 7] is denied as moot.
PETITION DENIED.
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