                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 26 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

GERARDO FRANCISCO NAVAS,                        No.   19-71279

                Petitioner,                     Agency No. A074 218 742

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                               Submitted June 12, 2020**
                               San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and BURGESS,*** District
Judge.

      Petitioner Gerardo Francisco Navas, a native and citizen of El Salvador,

entered the United States without inspection as a child in or about 1987. He obtained



      *
             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).
      ***
              The Honorable Timothy M. Burgess, United States Chief District Judge
for the District of Alaska, sitting by designation.
legal permanent resident status on April 12, 1996. On March 26, 2018, Petitioner

was served with a notice to appear (“NTA”) alleging that he had been convicted of

an aggravated felony in 2016 and was consequently removable.

      The immigration judge (“IJ”) found Petitioner removable. Subsequently,

Petitioner filed an application for asylum, withholding of removal, and Convention

Against Torture (“CAT”) relief.        Petitioner also filed a motion to terminate

proceedings, arguing that the IJ lacked jurisdiction because the NTA did not include

a date, time, or location of the hearing. The IJ denied Petitioner’s motion to

terminate. Following his individual hearing, the IJ denied Petitioner’s application

for asylum, withholding of removal, and CAT relief. Petitioner appealed to the

Board of Immigration Appeals (“BIA”), challenging only the IJ’s determination that

he was ineligible for CAT relief. The BIA dismissed his appeal.

      The petition for review before us argues that the IJ lacked jurisdiction because

the NTA was deficient; that the IJ erred in finding that Petitioner’s conviction was

for a “particularly serious crime”; and that the BIA’s determination that Petitioner

did not show a likelihood of torture was not supported by substantial evidence. We

dismiss the petition in part and deny it in in part.




                                            2                                 19-71279
      In his appeal to the BIA, Petitioner did not claim that the NTA was deficient.1

Assuming Petitioner’s failure to exhaust this purportedly jurisdictional challenge is

not a bar to relief, Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017), the

argument is directly foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th

Cir. 2020) (“[T]he lack of time, date, and place in the NTA sent to [the petitioner]

did not deprive the immigration court of jurisdiction over [their] case.”).

      Petitioner also did not challenge before the BIA the IJ’s determination that he

had been convicted of a particularly serious crime and is consequently ineligible for

withholding of removal. Therefore, he has failed to exhaust the issue and we have

no jurisdiction to decide it. Arsdi v. Holder, 659 F.3d 925, 928 (9th Cir. 2011).

      The only issue Petitioner raised in his appeal to the BIA was whether the IJ’s

determination that Petitioner was ineligible for CAT relief was supported by

substantial evidence. Having reviewed the record, we find that substantial evidence

supports the agency’s denial of CAT relief because Petitioner has failed to show that

it is more likely than not that he would be tortured by or with the consent or

acquiescence of the government if he returned to El Salvador. See Delgado-Ortiz v.



1
 It is peculiar that Petitioner disavowed this argument before the BIA despite raising
a similar argument before the IJ in his motion to terminate. Petitioner’s claim that
the NTA was deficient concerns the agency’s regulations. Yet, by failing to raise it
before the BIA, he deprived the agency of the opportunity to interpret its own
regulations—a task to which it is particularly well-suited. We do not speculate as to
his reason for taking this approach.

                                          3                                   19-71279
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (holding that generalized

evidence of violence and crime in the petitioner’s home country is insufficient to

meet the standard for CAT relief); see also Andrade-Garcia v. Lynch, 828 F.3d 829,

836 (9th Cir. 2016) (holding that “a general ineffectiveness on the government’s part

to investigate and prevent crime will not suffice to show acquiescence”).

      The petition for review is DISMISSED in part and DENIED in part. All

pending motions are DENIED as moot.




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