                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            SEP 11 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FREDY ALBERTO SANDOVAL-                          No.   14-70378
LEMUS, AKA Fredi Alberto Sandoval,
AKA Fredy Alberto Sandoval,                      Agency No. A055-808-064

              Petitioner,
                                                 MEMORANDUM*
 v.

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                             Submitted May 16, 2017**
                              San Francisco, California

Before: THOMAS, Chief Judge, WARDLAW, Circuit Judge, and MORRIS,***
District Judge.



      *
             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 Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
      Fredy Alberto Sandoval-Lemus (“Sandoval”), a native and citizen of El

Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”)

decision affirming the immigration judge’s (“IJ”) denial of his applications for

withholding of removal and protection under the Convention Against Torture

(“CAT”). Because Sandoval was found removable on account of an aggravated

felony conviction, we may review only those factual issues that are related to the

agency’s denial of relief on the merits. See 8 U.S.C. § 1252(a)(2)(C), (D);

Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). Because the BIA adopted

the IJ’s decision but also independently reviewed the evidence and law, we review

both decisions. See Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). We deny

Sandoval’s petition for review.

1.    Sandoval was convicted of (1) an attempted lewd act upon a child under

fourteen and (2) contacting a child with the intent to commit a specific crime. The

agency found that these convictions, which arose out of the same incident,

constituted a particularly serious crime rendering Sandoval ineligible for

withholding of removal. Because that was a threshold determination concerning

Sandoval’s eligibility for relief—rather than an adjudication on the merits—we do

not have jurisdiction to review the agency’s factual finding. See Pechenkov, 705




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F.3d at 448. However, we may review legal or constitutional questions related to

the agency’s analysis. See 8 U.S.C. § 1252(a)(2)(D).

      Sandoval raises one legal issue. He contends that, in determining that his

crime was particularly serious, the agency impermissibly relied on the description

of the crime in a Pre-Plea Report. A probation officer prepared that report by

summarizing, among other things, a police report from Sandoval’s arrest. That

police report, and in turn, the Pre-Plea Report, recounted the sting operation that

led police officers to Sandoval, as well as Sandoval’s purported statements to the

officers who arrested him.

      In immigration proceedings, due process requires only that evidence is

“probative and its admission is fundamentally fair.” Sanchez v. Holder, 704 F.3d

1107, 1109 (9th Cir. 2012) (per curiam) (quoting Espinoza v. INS, 45 F.3d 308,

310 (9th Cir. 1995)). In addition, the agency has interpreted the withholding of

removal statute to allow it to consider “all reliable information” in a particularly

serious crime determination. In re N–A–M–, 24 I. & N. Dec. 336, 342 (BIA 2007).

This includes “the conviction records and sentencing information, as well as other

information outside the confines of a record of conviction.” Id. In Anaya-Ortiz v.

Holder, 594 F.3d 673 (9th Cir. 2010), we deferred to that interpretation. Id. at 678.




                                           3
      The Pre-Plea Report met the due process standard for admission. The report

was probative of the seriousness of Sandoval’s conviction: it described his

electronic communications with an officer pretending to be a thirteen-year-old

child, and his statements to arresting officers admitting that he was aware of the

child’s age. Its admission was also fundamentally fair. Hearsay is admissible in

immigration proceedings. See Sanchez, 704 F.3d at 1109. This includes police

reports. See Rizk v. Holder, 629 F.3d 1083, 1088–91 (9th Cir. 2011). Moreover,

we have held that it is fundamentally fair to admit a government document even

when the petitioner challenges its memorialization of his statements. See Sanchez,

704 F.3d at 1109.

      The Pre-Plea report contains facts that may be considered in a particularly

serious crime determination. Though we have suggested that there may be limits

to the use of a police report, see Alphonsus v. Holder, 705 F.3d 1031, 1047 n.15

(9th Cir. 2013), the agency’s analysis did not implicate any of those hypothetical

limits. Sandoval did not specifically dispute the facts in the Pre-Plea Report, but

merely testified that he could not remember certain details about his conviction. In

addition, the agency did not rely on the report beyond the facts supporting

Sandoval’s conviction.




                                          4
2.    Substantial evidence supports the agency’s denial of deferral of removal

under CAT. Sandoval bore the burden of proving that it was “more likely than not

that he . . . would be tortured if removed” to El Salvador. Nuru v. Gonzales, 404

F.3d 1207, 1216 (9th Cir. 2005) (alteration in original) (quoting Al-Saher v. INS,

268 F.3d 1143, 1147 (9th Cir. 2001)).

       Sandoval did not adduce evidence of past torture, which “is ordinarily the

principal factor” supporting an applicant’s eligibility for CAT protection. See id.

at 1218; see also Edu v. Holder, 624 F.3d 1137, 1145 (9th Cir. 2010). He did

present country reports showing violence against the LGBT community in El

Salvador, including violence perpetrated by police. One report documented eleven

reported murders of LGBT individuals in 2008, twenty-three in 2009, and ten in

2010. However, the attacks were not so pervasive as to compel the conclusion that

Sandoval met the high bar for CAT relief—that he would more likely than not be

tortured.

      Further, though Sandoval’s father and two other family members were

attacked in El Salvador, the evidence did not show that the perpetrators were

targeting his family and thus that they would seek him out. Rather, the evidence

indicated that the attacks were financially motivated. Additionally, one of

Sandoval’s uncles has continued to live in El Salvador without being harmed. His


                                          5
father has also been safe during numerous return visits to El Salvador, as has his

grandmother. This evidence supports the BIA’s finding that Sandoval did not face

a high risk of being attacked upon return. See Santos-Lemus v. Mukasey, 542 F.3d

738, 748 (9th Cir. 2008) (“[B]ecause Santos-Lemus’s mother has remained safely

in his hometown, substantial evidence supports the Board’s finding that it is not

more likely than not that Santos-Lemus will be tortured by or with the consent or

acquiescence of the Salvadoran government upon return.”), abrogated on other

grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013). Moreover,

there is no evidence that the Salvadoran government would acquiesce in any future

torture perpetrated against Sandoval. Though the police failed to investigate the

attack on one of his family members, they investigated the two others.

      PETITION FOR REVIEW DENIED.




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