CATIVO v. BARR (2019)

MEMORANDUM ***

Petitioner Juan Cativo, a native and citizen of El Salvador, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying him relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a).¹ Reviewing the BIA’s factual findings for substantial evidence, Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc), we deny the petition.

The record does not compel the conclusion that it is more likely than not that Cativo “would face any particular threat of torture beyond that of which all citizens of [El Salvador] are at risk” were he to be removed to that country. Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008); see also 8 C.F.R. § 208.18(a). Cativo has never been the victim of violence in El Salvador. He was not physically harmed during the robbery attempt that he described in his testimony before the Immigration Judge, and it does not appear that his family was specifically targeted during that attempt. That fact alone distinguishes Bringas-Rodriguez, in which the petitioner had been “horrifically abused” by family members and a neighbor because he was gay. 850 F.3d at 1056.

To attempt to establish that it is more likely than not that he would be tortured by, at the instigation of, or with the consent or acquiescence of the government or government officials in El Salvador, as required to obtain CAT relief, Cativo offered only generalized country conditions evidence about discrimination against the LGBT community and people with HIV/AIDS. Although the BIA acknowledged evidence of violence against gay individuals in El Salvador, it held that this evidence did not “establish a sufficient level of gross, flagrant, or mass violations of human rights such that deferral of removal should be granted.” Nothing in the record belies that determination. Cativo does not challenge before this court the BIA’s conclusion that “there is no evidence of a specific or deliberate intent to deprive him of [HIV] medication,” so any such challenge is forfeited. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1260 (9th Cir. 1996).

PETITION DENIED.

FOOTNOTES

1.   The United States Supreme Court recently granted certiorari in Nasrallah v. Barr, No. 18-1432, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2019 WL 5281287 (Oct. 18, 2019), which presents the question “[w]hether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.” Petition for a Writ of Certiorari, Nasrallah v. Barr, No. 18-1432 (May 14, 2019). We decide this case in accordance with current Ninth Circuit precedent, under which we have jurisdiction over Cativo’s challenge to the denial of deferral of removal under the CAT. See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). Because any determination by the Supreme Court that we lack jurisdiction would have no effect on the outcome of this case, we proceed under our existing caselaw.