NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO MEDINA ZAMORA, AKA No. 19-70956
Armando Medina-Zamora, AKA Armando
MedinaZamora, Agency No. A213-000-889
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 27, 2023**
San Francisco, California
Before: WALLACE, O’SCANNLAIN, SILVERMAN, Circuit Judges.
Armando Medina Zamora, a native and citizen of Mexico, timely petitions pro
se for review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal
from the immigration judge’s denial of his application for deferral of removal under
*
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 Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.
§ 1252. We review the BIA’s denial of deferral of removal under CAT for
substantial evidence. See Benedicto v. Garland, 12 F.4th 1049, 1063 (9th Cir. 2021).
We review questions regarding a petitioner’s mental competency de novo. See id.
at 1057–58. We deny the petition.
The immigration judge (IJ) did not err in finding Zamora competent within
the meaning of 8 U.S.C. § 1229a(b)(3). The IJ held a competency hearing and
determined that Zamora understood the proceedings and could advocate on his own
behalf. See Salgado v. Sessions, 889 F.3d 982, 988 (9th Cir. 2018) (holding that the
petitioner was not incompetent, in part, as he “did not show an inability to answer
questions” or an “inability to stay on topic”); In re M-A-M-, 25 I. & N. Dec. 474,
480–81 (BIA 2011) (holding that, when determining competency, an IJ “should
include questions about where the hearing is taking place, the nature of the
proceedings, and the respondent’s state of mind”). While Zamora was being treated
for anxiety, Zamora stated—and the IJ agreed—that his anxiety would not interfere
with his ability to communicate during the proceedings. See Salgado, 889 F.3d
at 988 (holding that the petitioner was not incompetent, in part, as the petitioner “did
not allege that [his condition] affected his ability to comprehend the proceedings”);
see also In re M-A-M-, 25 I. & N. Dec. at 480 (observing that “there are many types
of mental illness that, even though serious, would not prevent a respondent from
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meaningfully participating in immigration proceedings”).
The BIA did not err in holding that Zamora waived any challenge to the IJ’s
determination that he was convicted of a particularly serious crime. At most, Zamora
attempted only to collaterally attack his sexual battery conviction; however, “[a]
petitioner may not collaterally attack his state court conviction on a petition for
review of a BIA decision.” Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041
(9th Cir. 2011). Even if this argument was not waived, Zamora’s challenge would
fail on the merits. This court has jurisdiction only to consider whether the agency
“applied the correct legal standard” when determining whether a petitioner
committed a particularly serious crime. Flores-Vega v. Barr, 932 F.3d 878, 884 (9th
Cir. 2019), citing 8 U.S.C. § 1252(a)(2)(B)(ii). As the IJ considered the elements of
the conviction, the sentence imposed, and the underlying facts, the IJ did not err in
holding that Zamora was convicted of a particularly serious crime. See Bare v. Barr,
975 F.3d 952, 961–62 (9th Cir. 2020) (holding that the agency must consider “(1) the
nature of the conviction, (2) the type of sentence imposed, and (3) the circumstances
and underlying facts of the conviction”) (cleaned up). As Zamora was convicted of
a particularly serious crime, the IJ did not err in denying Zamora’s application for
asylum and withholding of removal. See Flores-Vega, 932 F.3d at 884, citing 8
U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).
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Substantial evidence supports the BIA’s denial of deferral of removal 1 under
CAT. While Zamora was hit once with a brick in 1992, he did not suffer past torture
in Mexico. See Hernandez v. Garland, 52 F.4th 757, 769 (9th Cir. 2022) (holding
that “significant physical abuse” without “serious injuries or long-term harm” does
not constitute past torture); Ruiz-Colmenares v. Garland, 25 F.4th 742, 751 (9th Cir.
2022) (“Evidence of past torture is relevant (though not alone sufficient) in assessing
a particular petitioner’s likelihood of future torture.”). Moreover, Zamora did not
establish that any future torture would be at the acquiescence of public officials. See
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general
ineffectiveness on the government’s part to investigate and prevent crime will not
suffice to show acquiescence.”). Furthermore, Zamora testified that he has many
siblings living in various locales in Mexico, establishing that he can safely relocate.
See Tzompantzi-Salazar v. Garland, 32 F.4th 696, 704 (9th Cir. 2022); 8 C.F.R.
§ 1208.16(c).
PETITION DENIED.
1
“The only immigration relief available to a noncitizen convicted of a ‘particularly
serious crime’ is deferral of removal under CAT[.]” Flores-Vega, 932 F.3d at 884.
4