NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WALTER MAURICIO AVILAVELASQUEZ, AKA Herbert Donaldo 

Hernandez, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71391 

Agency No. A074-437-849 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 11, 2022**

Phoenix, Arizona

Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges.

Walter Mauricio Avila-Velasquez, a native and citizen of Guatemala,

petitions for review of an order of the Board of Immigration Appeals (BIA) 

denying his applications for withholding of removal and relief under 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).

FILED

MAR 17 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 3

Convention Against Torture (CAT). We deny the petition. 

1. Avila-Velasquez has, by failing to present a substantive argument, 

waived any challenge to the merits of the BIA’s decision rejecting his applications 

for withholding and CAT relief. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 

1259 (9th Cir. 1996). In any case, Avila-Velasquez was afforded an opportunity to 

testify at his hearing before the immigration judge and declined to do so, instead 

choosing to rely on his application and supporting documents at his hearing. He 

also acknowledged at the hearing that he had provided false information in a 

previous asylum application and did not adequately justify that falsehood to the 

agency. See Li v. Garland, 13 F.4th 954, 960–61 (9th Cir. 2021). Under these 

circumstances, the agency’s adverse credibility determination is adequately 

supported by the record and Avila-Velasquez was not denied his right to a full and 

fair hearing.

2. The IJ had jurisdiction to adjudicate Avila-Velasquez’s applications for 

relief. Avila-Velasquez was ordered removed in withholding-only proceedings

under 8 U.S.C. § 1231(a)(5) as opposed to traditional removal proceedings under 8 

U.S.C. § 1229a. Jurisdiction in withholding-only proceedings does not require the 

issuance of a notice to appear (NTA) and thus is not governed by 8 U.S.C.

§ 1229(a), the statute at issue in Pereira v. Sessions, 138 S. Ct. 2105 (2018), and 

Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). See Tzompantzi-Salazar v. 
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Garland, 25 F.4th 752, 759 (9th Cir. 2022) (“Petitioner's current proceeding was 

initiated with a different charging document—a Notice of Referral to Immigration 

Judge (NOR)—which alone makes Pereira inapplicable to his proceeding.”). 

Further, the nature of withholding-only proceedings does not allow AvilaVelasquez to challenge the validity of the NTA underlying his original removal 

order. See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en 

banc); see also Nolasco-Amaya v. Garland, 14 F.4th 1007, 1011 n.1 (9th Cir. 

2021) (“Petitioner is foreclosed from challenging reinstatement of her prior 

removal order due to defective service.”). 

PETITION FOR REVIEW DENIED.