NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERGIO GONZALEZ

- HERNANDEZ,

Petitioner,

v.
MERRICK B. GARLAND, Attorney General,

Respondent. No. 20

- 71701

Agency No. A205

- 718

- 978

MEMORANDUM *

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

Submitted November 16, 2021 * * Pasadena, California

Before: WARDLAW, PARKER, ** * and HURWITZ, Circuit Judges.

Sergio Gonzale z Hernandez , a native and citizen of Mexico , petitions for

review of a Board of Immigration Appeals ’ (BIA) order dismissing his appeal from

* 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 Barringt on D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 

# FILED

NOV 19 2021

MOLLY C. DWYER , CLERK U.S. COURT OF APPEALS2

the denial by an Immigration Judge (IJ) of his applications for asylum, withholding

of removal and protection under the Convent ion Against Torture (CAT).

We have jurisdiction to review Gonzale z ’ s petition under 8 U.S.C. § 1252.

Where, as here, the B IA issues its own decision
, but relies in part on the IJ ’s

decision
, we review the BIA ’s decision and the IJ ’s decision to the extent adopted.

See Flores

-

Lopez v. Holder , 685 F.3d 857, 861 (9th Cir. 2012) (citing Alaelua v.

INS , 45 F.3d 1379, 1382

- 83 (9th Cir. 1995)).

We review only the reasons the BIA gave in support of its decision, and we

review those reasons for “substantial evidence.” A rrey v. Barr , 916 F.3d 1149,

1157 (9th Cir. 2019) ; Mairena v. Barr , 917 F.3d 1119, 1123 (9th Cir. 2019).

Under that standard, we must find the BIA ’ s reasons suffici ent unless, after
reviewing the record as a whole, “any reasonable adjudicator” would have been
“compelled” to reach a different conclusion. 8 U.S.C. § 1252(b)(4)(B); Garland v.

Dai , 141 S. Ct. 1669, 167 9 (2021).

1. The BIA concluded that Gonzale z ’ s asyl um application was untimely

as he did not file it within a year of his arrival in the United States in 2000, and

instead waited fifteen years. Because Gonzale z failed to raise this finding in his

petition for review of the BIA decision, he has forfeited a ny challenge to the

untimeliness finding

.

2

. The BIA correctly determined that the IJ applied the appropriate legal3

standard in determining whether Gonzale z qualified for withholding of removal.

T o qualify for withholding of removal, an applicant must sh ow a “clear
probability” of future persecution. INS v. Stevic , 467 U.S. 407, 430 (1984); see

also Alvarez

– Santos v. INS, 332 F.3d 1245, 1255 (9th Cir.2003). Although the IJ
initially referenced a “definite” risk standard, he ultimately applied the correct

standard , reciting it verbatim while evaluating the evidence and concluding that
“there is no clear probability of persecution in this case

. ”

3

. Substantia l evidence supports the BIA’s conclusion that Gonzal e z did

not qualify for withholding of removal because although he received threats in the

past, he failed to demonstrate that those threats rose to the necessary level of

persecution

. Rather, the threats he received were made infrequently, anonymously

and over the phone. Comp a re Duran

- Rodriguez v. Barr , 918 F.3d 1025, 1028 (9 th

Cir. 2019) (holding that threats alone “ constitute persecution in only a small

category of cases, ” typically where the threats a re “ repeated, specific and

combined with confrontation or other mistreatment” ) with Mashiri v. Ashcroft , 383

F.3d 1112, 1119 (9 th Cir. 2004) (holding that threats alone ordinarily constitute

persecution on ly when accompanied by acts like “ violent confrontations, near

confrontations and vandalism” )

. Nor would a reasonable adjudicator have been

compelled to find Gonzale z was likely to be perse cuted in the future. Although

Gonzale z claim ed to fear persecution by a group within the police called the4

“Brotherhood,” he offered only speculation that the group still exist ed and would

have be en likely to persecute him if he were removed to Mexico

. T he internal

investigation that instigated the threats in the first place concluded in 199 9 and was
unlikely to be on anyone’s mind in light of other significant events that had

occurred in Mexico since then, such as an intervening drug war and numerous
pol ice corruption scandals. Further, t he Brotherhood largely stopped threatening

Gonzale z after he quit the police force and neither he nor his family in Mexico ha d

heard from the Brotherhood in nearly twenty years

.

4

. Substantial evidence also supports the BIA’s conclusion that Gonzale z
did not meet his burden to qualify for protection under CAT

. To qualify for

protection under CAT, an applicant must establish that is it “more likely than not”

that he would be tortured if removed to his countr y of origin. 8 C.F.R.

§ 208.16(c)(2); see also Tamang v. Holder , 598 F.3d 1083, 1095 (9th Cir. 2010).

A reasonable adjudicator would not have been compelled to find that Gonzale z

was more likely than not to be tortured if returned to Mexico

. Gonzale z wa s never
tortured in the past, and while he did submit several documents describing high

levels of violence in Mexico in general, he submitted no evidence that people like

him ( former police officers who had testified in internal investigations hearings

aga inst members of the Brotherhood ) were being targeted. Nor did he submit any5

evidence that he would be individually targeted for torture. 1

PETITION FOR REVIEW DENIED

.

1 Gonzale z ’ s motion for stay of removal pending our review of his case is denied as moot.