                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        MAR 4 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ESTEBAN HERNANDEZ,                              No.    15-72945
                                                       15-73559
                Petitioner,                            16-71207

 v.                                             Agency No. A092-330-324

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

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

                      Argued and Submitted February 5, 2020
                            San Francisco, California

Before: PAEZ, BEA, and FRIEDLAND, Circuit Judges.

      Esteban Hernandez petitions for review of the Board of Immigration

Appeals (“BIA”) decision denying him relief from removal in the form of

withholding of removal under 8 U.S.C. § 1231(b)(3) and deferral of removal under

the Convention Against Torture (“CAT”). He makes an additional claim that he is

entitled to an injunction against removal under the state-created danger doctrine.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We have jurisdiction under 8 U.S.C. § 1252.1 We dismiss his petition in part and

deny it in part.

 1.    We lack jurisdiction to consider Hernandez’s claim that the Immigration

Judge (“IJ”) did not consider the appropriate factors in making her determination

that Hernandez had been convicted of a particularly serious crime and thus was

ineligible for withholding of removal because Hernandez did not present this

argument to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Hernandez’s argument that we may address the claim notwithstanding his failure to

exhaust it before the BIA is meritless. Although “we may review any issue

addressed on the merits by the BIA, regardless of whether the petitioner raised it

before the agency,” Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018), the BIA


       1
          Section 1252 provides that “[n]otwithstanding any other provision of
law . . . no court shall have jurisdiction to review any final order or removal against
an alien who is removable by reason of having committed” certain criminal
offenses, but preserves jurisdiction over “constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals.” 8
U.S.C. § 1252(a)(2)(C)–(D). The United States Supreme Court recently granted
certiorari in Nasrallah v. Barr, No. 18-1432, 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), cert. granted, 140 S. Ct. 428 (Oct. 18, 2019). We
decide this case in accordance with current Ninth Circuit precedent, under which
we have jurisdiction over Hernandez’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.

                                          2
did not address this claim on the merits. The BIA concluded that Hernandez

waived his claim that his conviction for assault with a deadly weapon was not a

particularly serious crime because he did “not address[] the issue on appeal.” The

BIA’s statement that it “affirm[ed] the Immigration Judge’s determination that

[Hernandez’s] convictions constituted ‘particularly serious crimes’” was not a

decision on the merits because the only reason given for affirming the IJ was that

Hernandez had waived the issue. We therefore lack jurisdiction over this

unexhausted claim.

 2.   The agency considered all of the relevant evidence pertaining to

Hernandez’s application for deferral of removal under CAT. The BIA stated that it

agreed with the IJ “that there is insufficient evidence in the record” establishing

that Hernandez is entitled to deferral of removal. Such a “general statement that the

BIA considered all the evidence . . . suffice[s] where nothing in the record

indicates a failure to consider all the evidence,” Gonzalez-Caraveo v. Sessions, 882

F.3d 885, 894 (9th Cir. 2018)—and there is no such contrary indication here.

      Further, the IJ’s decision—which the BIA adopted—shows a consideration

of all the relevant evidence. Hernandez is plainly wrong that the IJ failed to

consider Dr. Shirk’s testimony. The IJ referenced Dr. Shirk’s testimony as it

related to “the general state of safety and security in Mexico” and more specifically

as it discussed the risk of violence to “those with personal connections to organized


                                          3
crime groups.” Hernandez is also wrong that the IJ ignored his documentary

evidence on country conditions, including State Department and NGO reports on

human rights in Mexico. The IJ referenced this documentary evidence in in her

decision, noting the “human rights reports on Mexico” that were in the record.

Reports contained in Exhibits 6 and 20, which the IJ cited specifically, included the

reports Hernandez alleges were ignored. Additionally, the IJ’s decision noted

Exhibit 16, which contained a 2012 report co-authored by Dr. Shirk titled “Drug

Violence in Mexico.” The IJ was not required to discuss each of these reports in

depth. See Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (“When nothing in

the record or the BIA's decision indicates a failure to consider all the evidence,

a general statement that the agency considered all the evidence before it may be

sufficient.”) (quotation marks and alterations omitted). The record shows that the

reports and expert testimony were considered, and the IJ’s decision was not naïve

about the general threat of violence and torture in Mexico.

 3.   The agency’s determination that Hernandez is not likely to be tortured in

Mexico was supported by “substantial evidence.” See Blandino-Medina v. Holder,

712 F.3d 1338, 1348 (9th Cir. 2013). Key to the IJ’s reasoning (as adopted by the

BIA) that it is unlikely Hernandez will be tortured in Mexico are the findings that

there is no evidence that information about his denunciations “will reach members

of the Arellano Felix cartel or his father’s associates” and that “there is no


                                           4
evidence that his father, the government, or the cartel is even searching for him.”

The record evidence does not “compel a different conclusion from the one reached

by the [agency].” Xiao Fei Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011).

      Interactions between Hernandez and law enforcement agencies have been

limited. Hernandez spoke to two Department of Homeland Security (“DHS”)

investigators more than six years ago, and his letters to other law enforcement

agencies have been met with form letter replies. The record contains no evidence

any agency has treated Hernandez as an active cooperator, and more importantly,

there is no evidence that his limited interactions with law enforcement have been

leaked to the cartel or anyone linked to his father.2

 4.   Hernandez is not entitled to an injunction against removal under the state-

created danger doctrine. Although Hernandez did not raise this issue to the BIA,

we have jurisdiction to address it. See Morgan v. Gonzales, 495 F.3d 1084, 1089–

90 (9th Cir. 2007). The government may not remove a petitioner to a foreign

country where the government, either by entering into a “special relationship” with

the petitioner, or through affirmative government action, created the risk that the

petitioner will be in danger from third parties if removed. See Wang v. Reno, 81


      2
         Although Hernandez’s counsel pointed at oral argument to a letter to the
editor in the Los Angeles based Spanish-language newspaper, La Opinión, any
argument regarding that letter was forfeited because it was not raised in
Hernandez’s opening brief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.
2011).

                                           5
F.3d 808, 818 (9th Cir. 1996). Hernandez does not have a “special relationship”

with the United States government that could entitle him to an injunction;

Hernandez’s only relevant interaction with the government consisted of his

interaction with DHS investigators more than six years ago. Further, like the

petitioner in Morgan, Hernandez is unable to identify “affirmative government

misconduct,” “gross negligence, [or] deliberate indifference,” on behalf of the

government that increased his risk of danger if he is returned to Mexico. See

Morgan, 495 F.3d at 1093 (quoting Wang, 81 F.3d at 818).

 5.   Hernandez’s opening brief did not discuss the BIA’s denials of his motions

to reconsider or reopen his removal proceedings. He therefore waived any

argument that these motions were improperly denied. See Greenwood v. FAA, 28

F. 3d 971, 977 (9th Cir. 1994).

      Hernandez’s petition for review is DISMISSED regarding his application

for withholding of removal and DENIED in all other respects.




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