NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTEBAN HERNANDEZ, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 15-72945 

15-73559 

16-71207 

Agency No. A092-330-324 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 5, 2020

San Francisco, California

Before: PAEZ, BEA, and FRIEDLAND, Circuit Judges.

Esteban Hernandez petitions for review of the Board of Immigration 

Appeals (“BIA”) decision denying him relief from removal in the form of 

withholding of removal under 8 U.S.C. § 1231(b)(3) and deferral of removal under 

the Convention Against Torture (“CAT”). He makes an additional claim that he is 

entitled to an injunction against removal under the state-created danger doctrine.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 4 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

We have jurisdiction under 8 U.S.C. § 1252.1 We dismiss his petition in part and 

deny it in part.

1. We lack jurisdiction to consider Hernandez’s claim that the Immigration 

Judge (“IJ”) did not consider the appropriate factors in making her determination 

that Hernandez had been convicted of a particularly serious crime and thus was 

ineligible for withholding of removal because Hernandez did not present this 

argument to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Hernandez’s argument that we may address the claim notwithstanding his failure to 

exhaust it before the BIA is meritless. Although “we may review any issue 

addressed on the merits by the BIA, regardless of whether the petitioner raised it 

before the agency,” Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018), the BIA 

1 Section 1252 provides that “[n]otwithstanding any other provision of 

law . . . no court shall have jurisdiction to review any final order or removal against 

an alien who is removable by reason of having committed” certain criminal 

offenses, but preserves jurisdiction over “constitutional claims or questions of law 

raised upon a petition for review filed with an appropriate court of appeals.” 8 

U.S.C. § 1252(a)(2)(C)–(D). The United States Supreme Court recently granted 

certiorari in Nasrallah v. Barr, No. 18-1432, which presents the question 

“[w]hether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess 

jurisdiction to review factual findings underlying denials of withholding (and 

deferral) of removal relief.” Petition for a Writ of Certiorari, Nasrallah v. Barr, 

No. 18-1432 (May 14, 2019), cert. granted, 140 S. Ct. 428 (Oct. 18, 2019). We 

decide this case in accordance with current Ninth Circuit precedent, under which 

we have jurisdiction over Hernandez’s challenge to the denial of deferral of 

removal under the CAT. See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 

2012). Because any determination by the Supreme Court that we lack jurisdiction 

would have no effect on the outcome of this case, we proceed under our existing 

caselaw.
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did not address this claim on the merits. The BIA concluded that Hernandez 

waived his claim that his conviction for assault with a deadly weapon was not a 

particularly serious crime because he did “not address[] the issue on appeal.” The 

BIA’s statement that it “affirm[ed] the Immigration Judge’s determination that 

[Hernandez’s] convictions constituted ‘particularly serious crimes’” was not a 

decision on the merits because the only reason given for affirming the IJ was that 

Hernandez had waived the issue. We therefore lack jurisdiction over this 

unexhausted claim.

2. The agency considered all of the relevant evidence pertaining to 

Hernandez’s application for deferral of removal under CAT. The BIA stated that it 

agreed with the IJ “that there is insufficient evidence in the record” establishing 

that Hernandez is entitled to deferral of removal. Such a “general statement that the 

BIA considered all the evidence . . . suffice[s] where nothing in the record 

indicates a failure to consider all the evidence,” Gonzalez-Caraveo v. Sessions, 882 

F.3d 885, 894 (9th Cir. 2018)—and there is no such contrary indication here. 

Further, the IJ’s decision—which the BIA adopted—shows a consideration 

of all the relevant evidence. Hernandez is plainly wrong that the IJ failed to 

consider Dr. Shirk’s testimony. The IJ referenced Dr. Shirk’s testimony as it 

related to “the general state of safety and security in Mexico” and more specifically 

as it discussed the risk of violence to “those with personal connections to organized 
4 

crime groups.” Hernandez is also wrong that the IJ ignored his documentary 

evidence on country conditions, including State Department and NGO reports on 

human rights in Mexico. The IJ referenced this documentary evidence in in her 

decision, noting the “human rights reports on Mexico” that were in the record.

Reports contained in Exhibits 6 and 20, which the IJ cited specifically, included the 

reports Hernandez alleges were ignored. Additionally, the IJ’s decision noted 

Exhibit 16, which contained a 2012 report co-authored by Dr. Shirk titled “Drug 

Violence in Mexico.” The IJ was not required to discuss each of these reports in 

depth. See Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (“When nothing in 

the record or the BIA's decision indicates a failure to consider all the evidence, 

a general statement that the agency considered all the evidence before it may be 

sufficient.”) (quotation marks and alterations omitted). The record shows that the 

reports and expert testimony were considered, and the IJ’s decision was not naïve 

about the general threat of violence and torture in Mexico.

3. The agency’s determination that Hernandez is not likely to be tortured in 

Mexico was supported by “substantial evidence.” See Blandino-Medina v. Holder, 

712 F.3d 1338, 1348 (9th Cir. 2013). Key to the IJ’s reasoning (as adopted by the 

BIA) that it is unlikely Hernandez will be tortured in Mexico are the findings that

there is no evidence that information about his denunciations “will reach members 

of the Arellano Felix cartel or his father’s associates” and that “there is no 
5 

evidence that his father, the government, or the cartel is even searching for him.”

The record evidence does not “compel a different conclusion from the one reached 

by the [agency].” Xiao Fei Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011).

Interactions between Hernandez and law enforcement agencies have been 

limited. Hernandez spoke to two Department of Homeland Security (“DHS”) 

investigators more than six years ago, and his letters to other law enforcement 

agencies have been met with form letter replies. The record contains no evidence 

any agency has treated Hernandez as an active cooperator, and more importantly, 

there is no evidence that his limited interactions with law enforcement have been 

leaked to the cartel or anyone linked to his father.

2

4. Hernandez is not entitled to an injunction against removal under the statecreated danger doctrine. Although Hernandez did not raise this issue to the BIA,

we have jurisdiction to address it. See Morgan v. Gonzales, 495 F.3d 1084, 1089–

90 (9th Cir. 2007). The government may not remove a petitioner to a foreign 

country where the government, either by entering into a “special relationship” with 

the petitioner, or through affirmative government action, created the risk that the 

petitioner will be in danger from third parties if removed. See Wang v. Reno, 81 

2 Although Hernandez’s counsel pointed at oral argument to a letter to the 

editor in the Los Angeles based Spanish-language newspaper, La Opinión, any 

argument regarding that letter was forfeited because it was not raised in 

Hernandez’s opening brief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 

2011).
6 

F.3d 808, 818 (9th Cir. 1996). Hernandez does not have a “special relationship” 

with the United States government that could entitle him to an injunction; 

Hernandez’s only relevant interaction with the government consisted of his 

interaction with DHS investigators more than six years ago. Further, like the 

petitioner in Morgan, Hernandez is unable to identify “affirmative government 

misconduct,” “gross negligence, [or] deliberate indifference,” on behalf of the 

government that increased his risk of danger if he is returned to Mexico. See 

Morgan, 495 F.3d at 1093 (quoting Wang, 81 F.3d at 818).

5. Hernandez’s opening brief did not discuss the BIA’s denials of his motions 

to reconsider or reopen his removal proceedings. He therefore waived any 

argument that these motions were improperly denied. See Greenwood v. FAA, 28

F. 3d 971, 977 (9th Cir. 1994).

Hernandez’s petition for review is DISMISSED regarding his application 

for withholding of removal and DENIED in all other respects.