NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAVID R GONZALEZ

- TURCIOS,

Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 21

- 70055 Agency No. A077

- 976

- 986

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 15, 2021

Pasadena, California Before: BERZON and RAWLINSON, Circuit Judges, and ANTOON, * * District Judge. David Gonzalez

- Turcios appeals the Board of Immigration Appeal s’ (“BIA” or “Board” ) decision ordering him removed to Honduras. He argues the Board erred in finding his conviction s for both assault and driving under the influence

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. 

# FILED

DEC 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

(“DUI”) w ere particularly serious crimes that bar immigration relief

. Additionally, Gonzalez

- Turcios argues the Board erred in denying him relief under the Convention Against Torture (“CAT”)

. We deny Gonzalez

- Turcios’s petition.
I. When considering whether a conviction was for a particular l y serious crime, the BIA must “ ask whether ‘the nature of the conviction, the underlying facts and circumstances[,] and the sentence imposed justify the presumption that the convicted immigrant is a danger to the community.’ ” Avendano

- Hernandez v. Lynch , 800 F.3d 1072, 1077 (9th Cir. 2015) ( quoting Delgado v. Holder , 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc)). This court reviews particular ly serious crime determinations for abuse of discretion. See Arbid v. Holder , 700 F. 3d 379,
38 3 (9 th Cir. 2012) (per curiam)

. Gonzalez

- Turcios may have waived in this court any argument that his 2016 conviction for driving under the influence , under California Vehicle Code section 23153(a) , was not a particularly serious crime

. “It is well established that an appellant’s failure to argue an issue in the opening brief, much less on appeal more generally, waives that issue

. . . . ” Freedom From Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ. , 896 F.3d 1132, 1152 (9th Cir. 2018) (per curiam) ; see also Lopez

- Vasquez v. Holder , 706 F.3d 1072, 1079 (9th Cir. 2013) (holding petitioner waived argument challenging BIA decision by “failing to argue3

it in his brief”). Nowhere in Gonzalez

- Turcios’s brief does he explicitly ment ion this conviction , let alone address the BIA’s analysis. Despite this silence, one of Gonzalez

- Turcios’s allegations can be understood as a challenge to the BIA’s reasoning concerning the 2016 conviction. He argues the BIA failed to consider his “mental health issues at the time when he was involved into [sic] the incidents leading to his convictions ” ; given the plural reference, he may be referring to both his 2014 assault conviction and his 2016
DUI conviction

. But this mental health argument , in any event, fails. The Board may consider a person’s mental health as one factor in a particular ly serious crime analysis

. See
Gomez

- Sanchez v. Sessions , 892 F.3d 985, 993 (9th Cir. 2018)

. But that permission does not require reliance on mental health in any particular case. I n this case , the
BIA affirmed the IJ’s conclusion that the impact of Gonzalez

- Turcios’s marital problems on his mental state “did not reduce the seriousness of the offense.” We hold the BIA acted within i ts discretion in determining that mental health considerations did not affect the particularly serious crime determination in this

case. T he rest of the BIA’s analysis was also proper . T he BIA adequately considered the nature of Gonzalez

- Turcios’s convict ion, the underlying facts, and the sentence imposed. Relying on well

- established law in this circuit, the BIA held4

that the DUI in which a nother person was injured wa s particularly serious. See Anaya

- Ortiz v. Holder , 594 F.3d 673 , 679

– 80 (9th Cir. 2010); Avendano

Hernandez , 800 F.3d at 1078

. Because one such crime suffices to bar withholding of removal under the INA and CAT , we need not consider his assault conviction.
S ee 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2)

. II. “To q ualify for deferral” of removal under CAT , Gonzalez

- Turcios “must establish that he ‘is more likely than not to be tortured’” if removed to Honduras. Lopez v. Sessions , 901 F.3d 1071, 1078 (9th Cir. 2018) (quoting 8 C.F.R. § 1208.17). And “t he torture must be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’” Garcia

-

Milian v. Holder , 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting Zheng v. Ashcroft , 332 F.3d 1186, 1188 (9th Cir. 2003 ) ). This court reviews the Board’s CAT determination for substantial evidence. See Lopez , 901 F.3d at 1074. The conclusion that Gonzalez

- Turcios neither has experienced past torture

nor reasonably fear s future torture is well supp orted by the record

. Gonzalez

Turcios testified that when he was thirteen , gang members threatened to kill him if he did not join them

. B ut no harm ever came to him from his refusal , and he has never been physically harmed by anyone in Honduras. The conclu sion that there was no past torture is thus supported by substantial evidence

. See Nuru v.5

Gonzales , 404 F.3d 1207, 1217 (9th Cir. 2005 )

. Gonzalez

- Turcios also argue s that he face d a particularized threat of future
torture based on his association with his family members , and because he has
tattoos. But Gonzalez

- Turcios’s relationship with the family members harmed by gangs was attenuated; Gonzalez

- Turcios did not, for example, know their names

. On the second point, none of his tattoos are gang - related, and nothing in the record supported the contention that non

- gang - related tattoos are likely to lead to harm. Finally, there was little evidence that any harm that might occur would involve government acquiescence. See Andrade

- Garcia v. Lynch , 828 F.3d 829, 836 (9th Cir. 2016) ; Del Cid Marroquin v. Lynch , 823 F.3d 933, 937 (9th Cir. 2016) (per curiam)

. The temporary stay of removal remains in place until the mandate issues

. The motion for a stay of removal is otherwise denied

. Gonzalez

- Turcios’s petition is DENIED

.