Franklin Hernandez Gonzalez v. JEFFREY A. ROSEN, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANKLIN HERNANDEZ GONZALEZ,
Petitioner,
v.
JEFFREY A. ROSEN, Acting Attorney
General,
Respondent.
No. 18-72231
Agency No. A094-292-595
MEMORANDUM*
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted January 15, 2021**
Pasadena, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and BLOCK,*** District
Judge.
Petitioner Franklin Hernandez Gonzalez, a native and citizen of Honduras,
* 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 Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
JAN 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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seeks review of the Board of Immigration Appeals’ (“BIA”) decision denying his
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”).
The BIA declined to reach the substance of Hernandez Gonzalez’s asylum
and withholding claims after finding his knowing transport of guns and drugs
triggered the serious nonpolitical crime bar. See 8 U.S.C. § 1158(b)(2)(A)(iii)
(ineligibility for relief where “there are serious reasons for believing that the alien
has committed a serious nonpolitical crime outside the United States prior to the
arrival of the alien in the United States”).
Hernandez Gonzalez raises three arguments in response. First, he argues that
we should balance the nature of his offense against the degree of persecution he
fears based on the United Nations High Commissioner for Refugees, Handbook on
Procedures and Criteria for Determining Refugee Status. However, the United
States Supreme Court has rejected Hernandez Gonzalez’s proposed balancing test,
and his argument therefore lacks merit. See INS v. Aguirre-Aguirre, 526 U.S. 415,
427-28 (1999) (holding UN handbook “is not binding on the Attorney General, the
BIA, or United States courts” and deferring to the BIA’s determination that the
statute in question “require[d] no additional balancing of the risk of persecution”).
Second, Hernandez Gonzalez argues that he was under duress at the time he
committed serious nonpolitical crimes. The BIA did not err in concluding that

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Hernandez Gonzalez’s claim fails due to his inability to establish an immediate
threat and because he could have escaped the threatened harm during the months-
long period in question. See United States v. Vasquez-Landaver, 527 F.3d 798, 802
(9th Cir. 2008); United States v. Moreno, 102 F.3d 994, 997 (9th Cir. 1996).
Third, notwithstanding the serious nonpolitical crime bar, Hernandez
Gonzalez argues due process requires that his application be reviewed on the
merits. This argument lacks merit because “courts and agencies are not required to
make findings on issues the decision of which is unnecessary to the results they
reach.” INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam); see also
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
Finally, the BIA did not err in denying Hernandez Gonzalez’s application
for protection under the CAT. “A petitioner seeking CAT relief must show that it is
more likely than not that he will be tortured upon removal, and that the torture will
be inflicted at the instigation of, or with the consent or acquiescence of, the
government.” Arteaga v. Mukasey, 511 F.3d 940, 948 (9th Cir. 2007). Hernandez
Gonzalez’s claim fails because he has not demonstrated that he was tortured in the
past, or that there is a direct connection between his allegations and the prospect of
future torture carried out with the consent or acquiescence of the Honduran
government.
PETITION DENIED.

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