NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER MAURICIO AVILA- No. 20-71391
VELASQUEZ, AKA Herbert Donaldo
Hernandez, Agency No. A074-437-849
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 11, 2022**
Phoenix, Arizona
Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges.
Walter Mauricio Avila-Velasquez, a native and citizen of Guatemala,
petitions for review of an order of the Board of Immigration Appeals (BIA)
denying his applications for withholding of removal and relief under the
*
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).
Page 2 of 3
Convention Against Torture (CAT). We deny the petition.
1. Avila-Velasquez has, by failing to present a substantive argument,
waived any challenge to the merits of the BIA’s decision rejecting his applications
for withholding and CAT relief. See Martinez-Serrano v. I.N.S., 94 F.3d 1256,
1259 (9th Cir. 1996). In any case, Avila-Velasquez was afforded an opportunity to
testify at his hearing before the immigration judge and declined to do so, instead
choosing to rely on his application and supporting documents at his hearing. He
also acknowledged at the hearing that he had provided false information in a
previous asylum application and did not adequately justify that falsehood to the
agency. See Li v. Garland, 13 F.4th 954, 960–61 (9th Cir. 2021). Under these
circumstances, the agency’s adverse credibility determination is adequately
supported by the record and Avila-Velasquez was not denied his right to a full and
fair hearing.
2. The IJ had jurisdiction to adjudicate Avila-Velasquez’s applications for
relief. Avila-Velasquez was ordered removed in withholding-only proceedings
under 8 U.S.C. § 1231(a)(5) as opposed to traditional removal proceedings under 8
U.S.C. § 1229a. Jurisdiction in withholding-only proceedings does not require the
issuance of a notice to appear (NTA) and thus is not governed by 8 U.S.C.
§ 1229(a), the statute at issue in Pereira v. Sessions, 138 S. Ct. 2105 (2018), and
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). See Tzompantzi-Salazar v.
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Garland, 25 F.4th 752, 759 (9th Cir. 2022) (“Petitioner's current proceeding was
initiated with a different charging document—a Notice of Referral to Immigration
Judge (NOR)—which alone makes Pereira inapplicable to his proceeding.”).
Further, the nature of withholding-only proceedings does not allow Avila-
Velasquez to challenge the validity of the NTA underlying his original removal
order. See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en
banc); see also Nolasco-Amaya v. Garland, 14 F.4th 1007, 1011 n.1 (9th Cir.
2021) (“Petitioner is foreclosed from challenging reinstatement of her prior
removal order due to defective service.”).
PETITION FOR REVIEW DENIED.