NOT FOR PUBLICATION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 Gonzalez 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 Barrington 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 APPEALS
2 

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

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

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

Where, as here, the BIA 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.” Arrey 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 sufficient 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, 1679 (2021). 

1. The BIA concluded that Gonzalez’s asylum 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 Gonzalez failed to raise this finding in his 

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

untimeliness finding.

2. The BIA correctly determined that the IJ applied the appropriate legal 
3 

standard in determining whether Gonzalez qualified for withholding of removal. 

To qualify for withholding of removal, an applicant must show 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. Substantial evidence supports the BIA’s conclusion that Gonzalez 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. Compare Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th

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

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

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

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

persecution only when accompanied by acts like “violent confrontations, nearconfrontations and vandalism”). Nor would a reasonable adjudicator have been 

compelled to find Gonzalez was likely to be persecuted in the future. Although 

Gonzalez claimed to fear persecution by a group within the police called the 
4 

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

have been likely to persecute him if he were removed to Mexico. The internal 

investigation that instigated the threats in the first place concluded in 1999 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 

police corruption scandals. Further, the Brotherhood largely stopped threatening

Gonzalez after he quit the police force and neither he nor his family in Mexico had

heard from the Brotherhood in nearly twenty years. 

4. Substantial evidence also supports the BIA’s conclusion that Gonzalez

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 country 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 Gonzalez

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

against members of the Brotherhood) were being targeted. Nor did he submit any 
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evidence that he would be individually targeted for torture.1

PETITION FOR REVIEW DENIED. 

1 Gonzalez’s motion for stay of removal pending our review of his case is denied 

as moot.