NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICARDO CRUZ-CALMO, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-72841 

Agency No. A202-065-865 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 12, 2022

San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and RAKOFF,** District Judge.

Ricardo Cruz-Calmo, a citizen of Guatemala, petitions for review of a Board 

of Immigration Appeals (BIA) order upholding the denial of his claims for asylum

and withholding of removal under the Immigration and Nationality Act and 

protection under the Convention Against Torture (CAT). We have jurisdiction under 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

FILED

MAY 25 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-72841 

8 U.S.C. § 1252 and deny the petition.

During his time in the United States, Cruz-Calmo was convicted in 

Washington state court for driving under the influence (DUI). The BIA held that his

DUI conviction was a “particularly serious crime” that barred Cruz-Calmo’s

eligibility for asylum and withholding of removal. It also denied CAT relief because 

Cruz-Calmo had not shown it was more likely than not that he would be tortured 

with the acquiescence of the government if returned to Guatemala. On appeal, CruzCalmo challenges the agency’s “particularly serious crime” determination and 

argues that the denial of his CAT claim is not supported by substantial evidence.

1. “Where the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994), 

and does not express disagreement with any part of the [Immigration Judge’s (IJ)]

decision, the BIA adopts the IJ’s decision in its entirety” and we review both 

decisions. Joseph v. Holder, 600 F.3d 1235, 1239–40 (9th Cir. 2010). Though we

lack jurisdiction over the ultimate decision that Cruz-Calmo committed a 

particularly serious crime, we retain jurisdiction to “determine whether the [agency] 

applied the correct legal standard.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) 

(quoting Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019)). Our review is 

“limited to ensuring that the agency relied on the ‘appropriate factors’ and ‘[]proper 

evidence’ to reach [its] conclusion.” Id. (first alteration in original) (quoting 

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)). We reverse 
3 20-72841 

“only if the BIA acted arbitrarily, irrationally, or contrary to law.” Id. (quotation 

marks omitted) (quoting Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012) (per 

curiam)).

Cruz-Calmo argues that the agency created a per se category of particularly 

serious crimes for all DUIs. We disagree. The IJ never concluded that all DUIs are 

necessarily “particularly serious.” Instead, the IJ stated the elements of CruzCalmo’s DUI offense and explained how those elements “potentially bring the 

offense within the ambit of a particularly serious crime.” See Bare, 975 F.3d at 961–

62 (quotation marks omitted) (quoting In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 

2007), overruled in part on other grounds by Blandino-Medina v. Holder, 712 F.3d 

1338, 1347–48 (9th Cir. 2013)). The agency properly concluded that the risks 

potentially posed by those elements meant that Cruz-Calmo’s DUI conviction passed 

the first gatekeeping factor of the “particularly serious crime” analysis.

Cruz-Calmo also contends that when evaluating the other factors, the IJ 

ignored favorable evidence. His contention boils down to a disagreement with the 

IJ’s weighing of relevant evidence, which was not arbitrary, irrational, or contrary 

to law. See id. at 961.

1

2. We review the agency’s denial of CAT relief for substantial evidence. 

1 Cruz-Calmo affirmatively waived the argument that the agency erred by relying on 

the police report. See Alcaraz-Enriquez v. Garland, 19 F.4th 1224, 1231 (9th Cir. 

2021).
4 20-72841 

Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th Cir. 2015). “Under the 

substantial evidence standard, ‘administrative findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to conclude to the contrary.’” 

Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (citing 8 U.S.C. 

§ 1252(b)(4)(B)).

Cruz-Calmo argues that the agency failed to consider all the evidence because 

it found that his past harm was limited to “kidnapping and a singular beating.” But 

we need not decide whether the record compels a different conclusion because the 

agency assumed that the harm suffered by Cruz-Calmo amounted to torture. The 

agency concluded that Cruz-Calmo did not qualify for CAT protection because he 

could safely relocate to another part of Guatemala and had not established that the 

government would acquiesce to his torture. The agency’s conclusion that CruzCalmo could relocate was also proper. Cruz-Calmo’s family has lived safely in 

another town since 2015. And although Cruz-Calmo testified that he wouldn’t be 

able to farm where his wife lives, he also stated that other people in town farm for 

an occupation. As for Cruz-Calmo’s contention that he could be found by his 

persecutors, he provides no reason to believe that rival party members would still be 

looking for him seven years later (especially given the fact that the rival party has 

disbanded).

Finally, Cruz-Calmo argues that evidence about the government’s failure to 
5 20-72841 

protect indigenous people establishes the government’s acquiescence to his potential 

torture. But the country conditions evidence also shows that the Guatemalan 

government is taking steps to combat violence against indigenous people, including 

passing protective laws, creating specialized agencies, founding model police forces 

in indigenous communities, and recognizing indigenous laws. Because “a general 

ineffectiveness on the government’s part to investigate and prevent crime will not

suffice to show acquiescence,” the record fails to compel the conclusion that CruzCalmo qualifies for CAT protection. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 

1184 (9th Cir. 2020) (quoting Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 

2016)).

PETITION DENIED.