MORENO v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.

Sergio Jonathan MORENO, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 18-72211

Decided: January 26, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Jason M. Caruso, Newmeyer & Dillion LLP, Newport Beach, CA, Monica Eav Glicken, Public Law Center, Santa Ana, CA, for Petitioner Lynda Do, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

MEMORANDUM **

Sergio Jonathan Moreno, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge's decision denying his application for deferral of removal under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency's factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny the petition for review.

Substantial evidence supports the agency's denial of CAT relief because Moreno 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 Mexico. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).

We reject Moreno's contention that the BIA erred in its legal analysis or ignored evidence. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency adequately considered evidence and sufficiently announced its decision).

We do not consider the materials Moreno references in his opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (court's review is limited to “the administrative record upon which the [removal] order is based” (internal quotation marks and citation omitted)).

On July 31, 2019, the court granted a stay of removal. The stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.