NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRMA BRITO-MARTINEZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

Nos. 19-71528 & 20-70615

Agency No. A089-589-713

MEMORANDUM*

On Petitions for Review of Orders of the

Board of Immigration Appeals

Submitted May 10, 2021**

Pasadena, California

Before: R. NELSON and BADE, Circuit Judges, and HELLERSTEIN,*** District 

Judge.

Irma Brito-Martinez, a native and citizen of Venezuela, petitions for review 

of two orders issued by the Board of Immigration Appeals (“BIA”), on May 22, 2019 

* 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 Alvin K. Hellerstein, United States District Judge for 

the Southern District of New York, sitting by designation.

FILED

MAY 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

and February 10, 2020. The 2019 order vacated an immigration judge’s (“IJ’s”) 

decision granting Petitioner protection under the Convention Against Torture 

(“CAT”). The 2020 order denied Petitioner’s motion to reopen her petition for 

adjustment of status, asylum, withholding of removal, and relief under the CAT on 

the ground of changed conditions. Petitioner argues that the BIA erred in reversing 

the IJ’s grant of relief under the CAT and abused its discretion in denying her motion

to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we deny 

both petitions.

We review an agency’s factual findings for substantial evidence, and “[t]he 

agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would 

be compelled to conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 

(2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). Substantial evidence supports the BIA’s 

determination that Petitioner failed to establish eligibility for CAT protection. To 

receive CAT relief, Petitioner must show that she would “more likely than not” be 

tortured if removed. 8 C.F.R. §§ 208.16(c)(2), 208.17(a). Petitioner must prove “a 

chance greater than fifty percent that [s]he will be tortured” if removed to Venezuela,

Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004), and that the torture would 

be “inflicted by or at the instigation of or with the consent or acquiescence of a 

[Venezuelan] public official or other person acting in an official capacity,” Cole v. 

Holder, 659 F.3d 762, 771 (9th Cir. 2011) (quoting 8 C.F.R. § 1208.18(a)(1)). 
3 

Here, Petitioner has cited only general concerns of Venezuela’s political 

instability, high crime rate, and deteriorating economic climate—conditions that 

affect all Venezuelan citizens. She has not pointed to any evidence showing that it 

is more likely than not that she would be tortured by, or with the consent or 

acquiescence of, a Venezuelan public official. And she is “not too sure” who would 

be interested in torturing her in Venezuela. The BIA recognized that, although some 

of Petitioner’s family members were killed in Venezuela, there was no evidence that 

their deaths were because of their religion, and Petitioner never experienced harm 

while living in Venezuela. Moreover, the BIA cited Petitioner’s testimony 

indicating that her brother-in-law was killed in a random act of violence, a carjacking, that was not harm instigated by, or with the consent or acquiescence of, the 

government. 

Petitioner’s arguments on appeal lack merit. First, Petitioner claims that the 

BIA erred in requiring a nexus to a protected ground in its CAT determination. But

the BIA did not make such a nexus requirement. Instead, the BIA found clear error 

in the IJ’s determination because the IJ’s grant of relief “was based primarily on 

evidence of an economic crisis in Venezuela and high levels of crime,” not “a clear 

probability of torture.” The BIA considered whether Petitioner had shown that it 

was more likely than not that she would be tortured in Venezuela for any reason, and 

did not impose a nexus requirement.
4 

Second, Petitioner contends that the BIA failed to consider the evidence in 

the aggregate. Specifically, she alleges that the BIA ignored evidence demonstrating 

violence and instability in Venezuela, such as travel warnings and the President’s 

imposition of sanctions and travel restrictions against Venezuela. We presume that 

the BIA reviewed all the evidence in the record. Fernandez v. Gonzales, 439 F.3d 

592, 603 (9th Cir. 2006). Petitioner has not overcome this presumption because the 

BIA mentioned and cited to the country conditions evidence. Additionally, this 

evidence does not compel a finding that Petitioner would be more likely than not to 

experience torture upon her return. See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th 

Cir. 2019) (noting that generalized evidence of violence and crime not particular to 

a petitioner is insufficient to meet the CAT standard). 

Third, Petitioner alleges that the BIA erred in finding that the IJ’s decision 

was based on speculation. The IJ found that “anyone associated with the United 

States” would likely have problems, and that Petitioner “could encounter some very 

significant problems that would rise, potentially, to the level of torture.” The IJ 

recognized that Petitioner had the burden of establishing that it was more likely than 

not that she would be tortured if returned to Venezuela but simply concluded that 

“she should receive protection under the [CAT].” These findings are speculative, as 

the BIA correctly determined, and clearly erroneous. See Matter of J-J-F-, 23 I & 

N Dec. 912, 920-21 (A.G. 2006) (explaining that to obtain relief under CAT, 
5 

petitioner must show that each link in the chain is more likely than not to occur). 

The record is also devoid of any suggestion that state action will be directed against 

Petitioner. It requires a leap to conclude from findings of Venezuela’s poor 

economy, “amorphous” conditions, and high crime rate that it is more likely than not 

that Petitioner herself will be tortured “at the instigation of or with the consent or 

acquiescence of a [Venezuelan] public official or other person acting in an official 

capacity.” Cole, 659 F.3d at 771.

1

 

We review the BIA’s denial of a motion to reopen for abuse of discretion, and 

we “will reverse the denial of a motion to reopen only if the [agency] acted 

1

 The implementing regulations for the CAT provide for withholding of removal, 8 

C.F.R. § 1208.16(c), or deferral of removal, 8 C.F.R. § 1208.16(c)(4), § 1208.17(a). 

Petitioner asserts that the Government failed to appeal the IJ’s grant of withholding 

of removal under the CAT, and as a result, Petitioner remains the beneficiary of a 

grant of withholding. This argument is meritless. First, Petitioner did not raise this 

issue during the appeal of the IJ’s 2017 decision to the BIA or raise it in her 

subsequent motion to reopen before the BIA. She improperly raises this issue, for 

the first time, in her second opening brief. See 8 U.S.C. § 1252(d)(1) (“A court may 

review a final order of removal only if the alien has exhausted all administrative 

remedies available to the alien as of right.”). Second, even if this issue is properly 

before this court, the burden of proof and standards for either form of protection is 

the same. 8 C.F.R. § 1208.16(c)(2); see also § 1208.16(c)(4) (providing that if an 

applicant shows she is more likely than not to be tortured, she “will be granted 

[protection] either in the form of withholding of removal or in the form of deferral 

of removal”). Substantial evidence supports the BIA’s finding that Petitioner is 

ineligible for CAT protection. Petitioner has shown only political instability and 

economic hardship experienced by all Venezuelan citizens and has failed to point to 

evidence that compels the conclusion that it is more likely than not that she will be 

tortured by, or with the consent or acquiescence of, the government if retuned to 

Venezuela. 
6 

arbitrarily, irrationally, or contrary to law.” Martinez-Hernandez v. Holder, 778 

F.3d 1086, 1088 (9th Cir. 2015) (citation omitted). The BIA acted within its 

discretion in denying Petitioner’s motion to reopen.2In deciding a motion to reopen, 

the critical question is “whether circumstances have changed sufficiently that a 

petitioner who previously did not have a legitimate claim” now does. Malty v. 

Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). Here, the newly submitted evidence 

includes “travel warnings and [advisories] issued for United States citizens,” 

information about the “economic sanctions imposed on Venezuela by the United 

States, and other evidence of the general ongoing political instability and economic 

suffering experienced by all Venezuelan citizens.”3 These reports “simply recount[]

2

 Petitioner also challenges the BIA’s sua sponte denial of reopening for adjustment 

of status. This court is without jurisdiction to consider a sua sponte denial of 

reopening, other than for the “limited purpose of reviewing the reasoning behind the 

decision[] for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th 

Cir. 2016); see also Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020). Petitioner 

raises no such error on appeal. As a result, the BIA’s denial of Petitioner’s motion 

requesting sua sponte reopening is not subject to review by this court.

3

 Under Rule 28(j) of the Federal Rules of Appellate Procedure, Petitioner cites to 

supplemental authorities noting the recent designation of Venezuela for Temporary 

Protected Status (“TPS”) by the Department of Homeland Security. See 86 Fed. 

Reg. 13,574 (Mar. 9, 2021). However, the designation of Venezuela for TPS does 

not support Petitioner’s claim under the CAT. The only section of the supplemental 

authorities discussing human rights focuses on the Maduro regime’s repression of 

political opponents and mentions nothing of religious persecution. See 86 Fed. Reg. 

13,576 (Mar. 9, 2021). Because Petitioner never claims to be a political opponent 

to the Maduro regime, the supplemental authorities do not show that “more likely 

than not” she would be tortured upon removal. 8 C.F.R. §§ 208.16(c)(2), 208.17(a). 
7 

previous conditions presented at a previous hearing” and are “not sufficient to show 

a change in country conditions.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 

2017).

Petitioner’s request to reopen her asylum claim is particularly unwarranted in 

light of her extensive criminal record. Petitioner argues that our recent decision,

Lorenzo v. Whitaker, 752 F. App’x 482 (9th Cir. 2019), is a changed circumstance

that would justify reopening and remand. There, we held that the petitioner’s 

convictions for possessing and transporting methamphetamine did not qualify as 

controlled substance offenses giving rise to removability. See id. at 485. However,

Petitioner admitted, not just to one narcotics conviction, but to “five or six” 

convictions between 2012 and 2014, including convictions for grand auto theft, 

possession of heroin with intent to sell, possession of methamphetamine, and petty 

theft. Petitioner’s criminal history remains as extensive and serious after Lorenzo as 

it was before. The BIA did not abuse its discretion when it declined to reopen and

remand the case.

PETITIONS FOR REVIEW DENIED.