NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO GONZALEZ-HERNANDEZ, No. 20-71701
Petitioner, Agency No. A205-718-978
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2021**
Pasadena, California
Before: WARDLAW, PARKER,*** and HURWITZ, Circuit Judges.
Sergio Gonzalez Hernandez, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals’ (BIA) order dismissing his appeal from
*
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 Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
the denial by an Immigration Judge (IJ) of his applications for asylum, withholding
of removal and protection under the Convention Against Torture (CAT).
We have jurisdiction to review Gonzalez’s petition under 8 U.S.C. § 1252.
Where, as here, the BIA issues its own decision, but relies in part on the IJ’s
decision, we review the BIA’s decision and the IJ’s decision to the extent adopted.
See Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012) (citing Alaelua v.
INS, 45 F.3d 1379, 1382-83 (9th Cir. 1995)).
We review only the reasons the BIA gave in support of its decision, and we
review those reasons for “substantial evidence.” Arrey v. Barr, 916 F.3d 1149,
1157 (9th Cir. 2019); Mairena v. Barr, 917 F.3d 1119, 1123 (9th Cir. 2019).
Under that standard, we must find the BIA’s reasons sufficient unless, after
reviewing the record as a whole, “any reasonable adjudicator” would have been
“compelled” to reach a different conclusion. 8 U.S.C. § 1252(b)(4)(B); Garland v.
Dai, 141 S. Ct. 1669, 1679 (2021).
1. The BIA concluded that Gonzalez’s asylum application was untimely
as he did not file it within a year of his arrival in the United States in 2000, and
instead waited fifteen years. Because Gonzalez failed to raise this finding in his
petition for review of the BIA decision, he has forfeited any challenge to the
untimeliness finding.
2. The BIA correctly determined that the IJ applied the appropriate legal
2
standard in determining whether Gonzalez qualified for withholding of removal.
To qualify for withholding of removal, an applicant must show a “clear
probability” of future persecution. INS v. Stevic, 467 U.S. 407, 430 (1984); see
also Alvarez–Santos v. INS, 332 F.3d 1245, 1255 (9th Cir.2003). Although the IJ
initially referenced a “definite” risk standard, he ultimately applied the correct
standard, reciting it verbatim while evaluating the evidence and concluding that
“there is no clear probability of persecution in this case.”
3. Substantial evidence supports the BIA’s conclusion that Gonzalez did
not qualify for withholding of removal because although he received threats in the
past, he failed to demonstrate that those threats rose to the necessary level of
persecution. Rather, the threats he received were made infrequently, anonymously
and over the phone. Compare Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th
Cir. 2019) (holding that threats alone “constitute persecution in only a small
category of cases,” typically where the threats are “repeated, specific and
combined with confrontation or other mistreatment”) with Mashiri v. Ashcroft, 383
F.3d 1112, 1119 (9th Cir. 2004) (holding that threats alone ordinarily constitute
persecution only when accompanied by acts like “violent confrontations, near-
confrontations and vandalism”). Nor would a reasonable adjudicator have been
compelled to find Gonzalez was likely to be persecuted in the future. Although
Gonzalez claimed to fear persecution by a group within the police called the
3
“Brotherhood,” he offered only speculation that the group still existed and would
have been likely to persecute him if he were removed to Mexico. The internal
investigation that instigated the threats in the first place concluded in 1999 and was
unlikely to be on anyone’s mind in light of other significant events that had
occurred in Mexico since then, such as an intervening drug war and numerous
police corruption scandals. Further, the Brotherhood largely stopped threatening
Gonzalez after he quit the police force and neither he nor his family in Mexico had
heard from the Brotherhood in nearly twenty years.
4. Substantial evidence also supports the BIA’s conclusion that Gonzalez
did not meet his burden to qualify for protection under CAT. To qualify for
protection under CAT, an applicant must establish that is it “more likely than not”
that he would be tortured if removed to his country of origin. 8 C.F.R.
§ 208.16(c)(2); see also Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010).
A reasonable adjudicator would not have been compelled to find that Gonzalez
was more likely than not to be tortured if returned to Mexico. Gonzalez was never
tortured in the past, and while he did submit several documents describing high
levels of violence in Mexico in general, he submitted no evidence that people like
him (former police officers who had testified in internal investigations hearings
against members of the Brotherhood) were being targeted. Nor did he submit any
4
evidence that he would be individually targeted for torture.1
PETITION FOR REVIEW DENIED.
1
Gonzalez’s motion for stay of removal pending our review of his case is denied
as moot.
5