Raul Duarte-Vela v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL DUARTE-VELA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
Nos. 16-72395 & 18-70270
Agency No. A078-102-242
MEMORANDUM*
On Petitions for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2023**
Seattle, Washington
Before: FLETCHER and VANDYKE, Circuit Judges, and LIBURDI,*** District
Judge.
Raul Duarte-Vela petitions the court to review two Board of Immigration
Appeals (BIA) orders. The first is the BIA’s dismissal of his appeal from the
* 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 Michael T. Liburdi, United States District Judge for the District
of Arizona, sitting by designation.
FILED
FEB 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Immigration Judge’s (IJ) decision denying him asylum, withholding of removal
under the Immigration and Nationality Act (INA), and removal relief under the
Convention Against Torture (CAT). The second is the BIA’s denial of his motion
to reopen immigration proceedings. We have jurisdiction under 8 U.S.C. § 1252(a),
and we deny the petitions.
Duarte-Vela is a native and citizen of Mexico who entered the United States
without authorization in 1999, 2000, and 2004, and who now faces removal. He
applied for asylum, withholding of removal, and CAT relief after removal
proceedings began in 2014. He testified at his removal hearing that he had never
been harmed or threatened in Mexico but that he feared a local gang would persecute
him once it learned of his status as a repatriate from the United States.
The IJ denied his application for asylum and withholding of removal under
the INA and the CAT for three reasons. First, his asylum application was untimely.
Second, he suffered no past persecution and failed to show a nexus between the
future persecution he feared and his membership in any particular social group
(PSG). Third, he was ineligible for CAT relief because he did not present any
evidence that the Mexican government might torture him.
Duarte-Vela administratively appealed the IJ decision, except for the time bar
to asylum, the withholding of removal claim under the INA, and the domestic-
violence-conviction bar to the cancellation of removal. The BIA adopted and

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affirmed all parts of the IJ decision, incorporating its analysis. Even though Duarte-
Vela had not preserved a challenge to the timeliness of his asylum application, the
BIA confirmed it was untimely. It also confirmed he could not qualify for
withholding of removal or CAT relief because he had not demonstrated (1) a well-
founded fear of future persecution, (2) membership in a cognizable PSG, (3) nexus
between harm he feared and any protected grounds, or (4) that the Mexican
government would torture him or acquiesce to his torture.
Duarte-Vela subsequently moved to reopen proceedings to introduce evidence
that he newly qualified for an adjustment of his immigration status. The BIA denied
his motion as untimely and declined to reopen proceedings sua sponte.
Clear standards govern our review. If the BIA incorporates an IJ’s analysis
when it denies asylum, withholding of removal, or CAT relief, we review both the
IJ and BIA decisions for substantial evidence to support denial. See Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). And we decline to
review the BIA’s decision to not reopen proceedings sua sponte unless its reasoning
evinces legal or constitutional error. Lona v. Barr, 958 F.3d 1225, 1230, 1232–33
(9th Cir. 2020).
We easily reject Duarte-Vela’s jurisdictional argument that the immigration
court lacked subject matter jurisdiction as foreclosed by precedent. See United
States v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc).

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The IJ reasonably concluded that Duarte-Vela’s asylum application was
untimely. Part of his argument that the agency erred when it denied him withholding
of removal also fails for a similar reason: he did not raise an argument before the IJ
as to persecution owing to a political opinion. His remaining purported PSGs are
not cognizable. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir.
2010).
Duarte-Vela’s appeal of the agency’s denial of CAT relief fares no better.
CAT regulations place a heavy burden on the applicant. “Demonstrating torture
requires a much greater showing of harm than demonstrating persecution.”
Hernandez v. Garland, 52 F.4th 757, 769 (9th Cir. 2022). When deciding whether
an applicant has met this burden, the agency must consider relevant information
about conditions in the country of removal, 8 C.F.R. § 1208.16(c)(3), and it must
aggregate the risks of torture he faces from all sources, Hernandez, 52 F.4th at 772–
73.
Duarte-Vela argues the agency’s analysis fell short of those requirements in
three ways. First, it too cursorily discussed facts he purportedly presented that he
asserts support his CAT claim. Second, it did not evince that it considered country
conditions. Third, it did not aggregate the risk of torture he faced from all sources.
His first argument fails. Although he did not introduce any country conditions
evidence, the IJ relied on the State Department’s Country Conditions Report. There

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is nothing in the report that suggests Duarte-Vela himself faces a greater than 50
percent likelihood of “extreme … cruel and inhuman treatment” at the hands of
anyone—let alone the Mexican government. 8 C.F.R. § 1208.18(a)(2).
His second and third arguments fail because the BIA incorporated the IJ’s
reasoning and analysis of the CAT claim, and the IJ expressly addressed both
Duarte-Vela’s testimony and the country conditions evidence together. The BIA’s
decision can be “fairly read as approving the IJ’s finding that the probability of
torture is less than 50% in the aggregate.” Iraheta-Martinez v. Garland, 12 F.4th
942, 960 (9th Cir. 2021).
Lastly, we lack jurisdiction to review a BIA decision not to reopen
proceedings sua sponte unless it “denie[s] sua sponte relief not as a matter of
discretion, but because it erroneously believe[s] [1] that the law forbade it from
exercising its discretion or [2] that exercising its discretion would be futile.” Lara-
Garcia v. Garland, 49 F.4th 1271, 1277 (9th Cir. 2022). Neither exception applies
here.
PETITIONS DENIED.

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