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United States Court of Appeals, Ninth Circuit.

Salvador CABRERA-ARVIZO, aka Salvador Cabrera Arvizo, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 19-72866

Decided: September 22, 2020

Before: SCHROEDER, W. FLETCHER, and HUNSAKER, Circuit Judges. Mario Valenzuela, Esquire, Attorney, The Advocates' Law Firm, LLP, Bakersfield, CA, for Petitioner Genevieve M. Kelly, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent


Petitioner Salvador Cabrera-Arvizo, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ (BIA) decision declining to terminate proceedings for lack of jurisdiction and denying his application for deferral of removal under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for review.

Jurisdiction. Cabrera has questioned whether the immigration court had jurisdiction because his Notice to Appear (NTA) omitted the hearing time and date. He raised this issue in his statement of the case and introduction in his opening brief to us, but he did not discuss, or even mention, the issue in the body of his opening brief. Therefore, the issue is waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“[A]n issue referred to in the appellant's statement of the case but not discussed in the body of the opening brief is deemed waived.”).

Even if this issue were properly considered—it fails. In Karingithi v. Whitaker, we held that an NTA lacking time and date information does not divest the immigration court of jurisdiction if the regulatory requirements are met and the hearing time and date are timely provided. 913 F.3d 1158, 1160 (9th Cir. 2019). Cabrera's NTA contained all the required information necessary to vest the immigration court with jurisdiction, and Cabrera was timely provided the hearing time and date. See Aguilar Fermin v. Barr, 958 F.3d 887, 893–94 (9th Cir. 2020) (finding an NTA lacking time, date, and location information sufficient to vest jurisdiction). The immigration court properly exercised its jurisdiction.

CAT Claim. Cabrera's CAT claim relies on two threats made by cartel-linked individuals incarcerated in the United States, news articles and country reports documenting generalized violence in Mexico, and an anecdote of a family member who was tortured by the cartel for extortion purposes. Cabrera has no personal history of torture or harm inflicted by the cartel he fears, nor is there any country-conditions evidence documenting torture of individuals similarly situated to Cabrera. See United States v. Reyes-Bonilla, 671 F.3d 1036, 1051–52 (9th Cir. 2012) (holding a petitioner can meet his burden for CAT by showing a particularized threat of torture or relevant country conditions showing similar torture).

The BIA determined Cabrera was not entitled to relief under CAT because the evidence failed to demonstrate that he was more likely than not to be tortured by or with government consent or acquiescence if returned to Mexico. See Maldonado v. Lynch, 786 F.3d 1155, 1162, 1164 (9th Cir. 2015) (en banc) (explaining that an applicant for deferral of removal under CAT must show it is more likely than not he will be tortured with the consent or acquiescence of a public official upon removal to his native country). The agency reviewed all the relevant evidence in making its determination. Upon review, the evidence does not compel a contrary conclusion. Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016) (“[I]n order to reverse the BIA, we must determine that the evidence not only supports a contrary conclusion, but compels it․” (emphasis in original) (quotation and citation omitted)).



1.   Cabrera's Motion for Stay of Removal [Dkt. 1] is denied as moot. The temporary stay of removal remains in effect until issuance of the mandate.

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