                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             FEB 26 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GILBERTO TORRES CALVILLO,                        No.   15-71265

              Petitioner,                        Agency No. A092-168-907

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                     Argued and Submitted February 14, 2018
                            San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,** District Judge.

      Gilberto Torres Calvillo (“Calvillo”), native and citizen of Mexico, petitions

for review of a decision of the Board of Immigration Appeals (“BIA”), affirming

an immigration judge’s (“IJ”) denial of his application for withholding of removal


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.

1.    The BIA did not abuse its discretion in concluding that Calvillo’s conviction

for possession of marijuana, Cal. Health & Safety Code § 11359 (1999), was a

particularly serious crime. See 8 U.S.C. § 1231(b)(3)(B)(iv). Calvillo does not

challenge the BIA’s conclusion that, under Matter of Y–L–, 23 I. & N. Dec. 270

(A.G. 2002), his conviction was a particularly serious crime. Rather, Calvillo

argues that the application of Matter of Y–L– was impermissibly retroactive under

Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007).

      The BIA did not err in concluding that the IJ could retroactively apply

Matter of Y–L–, under the retroactivity test established by Montgomery Ward Co.

v. FTC, 691 F.2d 1322 (9th Cir. 1982). See Garfias-Rodriguez v. Holder, 702 F.3d

504, 519-20 (9th Cir. 2012) (en banc). Applying the Montgomery Ward factors,

we conclude that three of the five factors weigh against Calvillo, because there is

no evidence that Calvillo relied on the former rule and the degree of burden is

minimal. See Montgomery Ward, 691 F.2d at 1333. Therefore, the BIA properly

concluded that Calvillo was barred from relief by withholding of removal.

2.    Substantial evidence supports the BIA’s determination that Calvillo did not

establish a clear probability of torture. The BIA concluded that Calvillo was not


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likely to suffer torture upon his return to Mexico from any drug cartel or

organization. Calvillo does not challenge this conclusion and points to no evidence

to establish he is likely to be tortured upon his return, see Barajas-Romero v.

Lynch, 846 F.3d 351, 363 (9th Cir. 2017), therefore he has failed to carry his

burden of proof on this issue, see Martinez-Serrano v. INS, 94 F.3d 1256, 1259

(9th Cir. 1996) (noting issues not raised in opening brief are waived). Because

relief under CAT requires evidence “that torture will more likely than not occur”

and that “sufficient state action [is] involved in the torture,” see Barajas-Romero,

846 F.3d at 363, we need not address whether the BIA properly assessed the

government’s involvement.

3.    The BIA did not abuse its discretion in construing the submitted documents

as an attempt to reopen removal proceedings. See 8 C.F.R. § 1003.2(a). A motion

to reopen was the proper vehicle, because the documents were submitted in an

effort to challenge the IJ’s factual finding. See Doissaint v. Mukasey, 538 F.3d

1167, 1170 (9th Cir. 2008) (A “motion to reopen . . . is purely fact-based, seeking

to present newly discovered facts or changed circumstances since a petitioner’s

hearing.” (emphasis omitted)). The BIA is prohibited from engaging in such

factfinding. See 8 C.F.R. 1003.1(d)(3)(iv).




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      Having properly construed the submission of the documents as a motion to

reopen, the BIA did not abuse its discretion in denying the motion, because the

majority of documents submitted predate his merits hearing. See 8 C.F.R.

1003.2(c) (“A motion to reopen proceedings shall not be granted unless . . .

evidence sought to be offered . . . was not available and could not have been

discovered or presented at the former hearing[.]”).

      PETITION FOR REVIEW DENIED.




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