                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 24 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


EMILIO ABRAHAM BARAHONA                          No. 12-71692
SORIANO,
                                                 Agency No. A096-985-795
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted January 17, 2014
                            San Francisco, California

Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.

       Emilio Abraham Barahona Soriano petitions for review of a Board of

Immigration Appeals (BIA) decision denying him withholding of removal and

deferral of removal under the Convention Against Torture (CAT).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We reject Barahona’s claim that the BIA erred in determining that his prior

state conviction was for a particularly serious crime.1 To the extent Barahona

contends that the BIA erred in assessing the facts underlying that conviction, we

lack jurisdiction to consider his claims. Pechenkov v. Holder, 705 F.3d 444, 448

(9th Cir. 2012). We have jurisdiction over the remainder of Barahona’s arguments

under 8 U.S.C. §§ 1252(a)(1), 1252(a)(2)(D).

      We reject Barahona’s argument that the BIA relied solely on the “police

report” to the exclusion of other relevant evidence in determining that his state

conviction was for a particularly serious crime. The BIA stated that it considered

Barahona’s “conviction record,” a collection of documents including an “Abstract

of [Judgment], criminal information, a verbatim transcript of the respondent’s

guilty plea colloquy, hospital records, and witness statements.” All of those

documents are “reliable information” that the BIA may consider under In re N-A-

M-, 24 I. & N. Dec. 336, 342 (BIA 2007).

      Nor did the BIA err in relying on N-A-M- and Matter of R-A-M-, 25 I. & N.

Dec. 657 (BIA 2012), in determining whether Barahona’s conviction was for a

particularly serious crime. Although neither case analyzed a crime of domestic

      1
       Barahona did not argue that the BIA erred by failing to identify which
conviction was a particularly serious crime in his opening brief, and therefore he
waived the issue. Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).

                                          2
violence, each was a precedential decision articulating the general standard for

evaluating whether a prior offense was a particularly serious crime, and the BIA

correctly applied this framework. See 8 C.F.R. § 1003.1(g) (explaining the

precedential effect of designated BIA opinions). The BIA did not rely on In re S-

V-, 22 I. & N. Dec. 1306 (BIA 2000), and so we need not consider it here. See

Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009).

      The BIA’s rejection of Barahona’s CAT claim was supported by substantial

evidence in the record, including the country report, which recounted the

Salvadoran government’s efforts to protect homosexuals from discrimination. The

BIA did not err in rejecting Barahona’s CAT claim on the grounds that there was

insufficient evidence of government acquiescence in torture and that Barahona had

not demonstrated that he personally was more likely than not to be tortured. The

record does not compel a contrary conclusion, because Barahona did not establish

either “the likelihood that any one member of [the LGBT community] will be

tortured—as opposed to being persecuted or discriminated against,” Alphonsus v.

Holder, 705 F.3d 1031, 1049 (9th Cir. 2013), or that the police refuse to investigate

or prosecute crimes against homosexuals.

      Finally, Barahona’s due process claim fails because the record demonstrates

that Barahona received “a full and fair opportunity to be represented by counsel, to


                                         3
prepare an application for [asylum or other] relief, and to present testimony and

other evidence in support of the application,” which is all that due process requires.

Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926–27 (9th Cir. 2007). Nothing in

the record indicates that the BIA or Immigration Judge (IJ) improperly prejudged

Barahona’s CAT claim or failed to consider the lengthy written expert declaration

he submitted regarding violent incidents against gays in El Salvador, nor could his

counsel articulate any way in which the expert’s oral testimony would have added

to the written declaration that the IJ admittedly considered in detail. Cf. Zolotukhin

v. Gonzales, 417 F.3d 1073, 1075–77 (9th Cir. 2005); Lopez-Umanzor v. Gonzales,

405 F.3d 1049, 1057 (9th Cir. 2005).

      DISMISSED IN PART; DENIED IN PART.




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