Jose Reyes v. Robert Wilkinson

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ALFREDO REYES, No. 19-72371 Petitioner, Agency No. A071-571-047 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 20, 2021** Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Jose Alfredo Reyes, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). Our * 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). jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). We deny in part and dismiss in part the petition for review. As to Reyes’s claim based on perceived sexual orientation, substantial evidence supports the agency’s conclusion that Reyes failed to establish he suffered harm that rose to the level of persecution. See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (“Our caselaw characterizes persecution as an extreme concept, marked by the infliction of suffering or harm ... in a way regarded as offensive.” (internal quotation marks omitted)); see also Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (an applicant who alleges past persecution has the burden of proving that the treatment rises to the level of persecution). In his opening brief, Reyes does not challenge the agency’s conclusion that he failed to establish that he could not reasonably relocate within Guatemala to avoid future persecution. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are waived). As to Reyes’s claim based on a fear of gangs, substantial evidence supports the agency’s determination that Reyes failed to establish the harm he fears was or would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by 2 19-72371 criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, Reyes’s withholding of removal claim fails. Substantial evidence also supports the agency’s denial of CAT relief because Reyes failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (court not compelled to conclude petitioner was more likely than not to ...

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