FILED
NOT FOR PUBLICATION
APR 7 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICK ANIBAL VILLALTA, No. 18-71208
Petitioner, Agency No. A208-836-650
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2022**
Pasadena, California
Before: SCHROEDER, S.R. THOMAS, and BEA, Circuit Judges.
Erick Villalta, a native and citizen of El Salvador, petitions for review of a
Board of Immigration Appeals (“BIA”) order affirming an Immigration Judge’s
(“IJ”) denial of his application 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).
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for abuse of discretion “whether the BIA applied the correct
legal standard” in determining that the petitioner committed a “particularly serious
crime,” including whether the agency relied on the “appropriate factors and proper
evidence.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (citation and internal
quotation marks omitted). We review for substantial evidence the agency’s denial
of CAT relief. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).
Under this standard, we must accept the agency’s findings as “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). Where, as here, the BIA has conducted a de novo review
of the record and the law, our review is generally limited to the BIA’s own
decision, except to the extent its decision incorporates the IJ’s reasoning. Guerra
v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).
We deny the petition for review.
I
The agency did not abuse its discretion in finding that Villalta had
committed a “particularly serious crime,” and was therefore statutorily ineligible
2
for withholding of removal.1 See 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ cited the
relevant legal standard articulated in Matter of Frentescu, 18 I. & N. Dec. 244
(BIA 1982), and correctly applied that standard as it has been subsequently
modified. See Anaya-Ortiz v. Holder, 594 F.3d 673, 678–80 (9th Cir. 2010)
(requiring the IJ consider the nature of the conviction, its underlying facts, and the
sentence imposed, but noting the IJ no longer needs to make a separate finding that
the petitioner is a danger to the community).
In applying this standard to conclude that Villalta’s conviction under
California Penal Code section 237.5 was a “particularly serious crime,” the IJ did
not abuse her discretion when she did not mention that Villalta had been released
on bond from Department of Homeland Security custody; that fact falls outside of
the ambit of information an IJ is required to consider under Matter of Fentescu.
See id. To the extent that Villalta also asks us to “reweigh” other evidence that the
IJ already identified and analyzed, we lack jurisdiction to do so. Avendano-
Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015).
1
Although Villalta did not challenge the IJ’s “particularly serious crime”
finding in his appeal to the BIA, the BIA’s sua sponte discussion of this issue was
sufficient to preserve our jurisdiction over it. See Abebe v. Gonzales, 432 F.3d
1037, 1041 (9th Cir. 2005) (en banc). We exercise our discretion to review the
merits of this determination—despite the government’s failure to argue it in its
answering brief—because Villalta fully briefed this issue in his petition for review.
See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004).
3
II
We also deny Villalta’s petition for review as to the BIA’s dismissal of his
CAT claim. Substantial evidence supports the agency’s determination that he
failed to show he is more likely than not to be tortured by or with the acquiescence
of the El Salvadoran government, given that Villalta did not prove that he has been
tortured in the past; Villalta himself has not been threatened or harmed since he left
El Salvador more than fifteen years ago; none of his past incidents of mistreatment
were reported to authorities in El Salvador; and there is evidence in the record that
El Salvador is taking steps to reduce police corruption. See Delgado v. Holder,
648 F.3d 1095, 1108 (9th Cir. 2011); Andrade-Garcia v. Lynch, 828 F.3d 829,
836–37 (9th Cir. 2016) (“We have reversed agency determinations that future
torture is not likely only when the agency failed to take into account significant
evidence establishing government complicity in the criminal activity.”). In short,
the record does not compel a conclusion contrary to the agency’s. See 8 U.S.C.
§ 1252(b)(4)(B).
PETITION DENIED.
4
Erick Villalta v. Merrick Garland
Combined Opinion