Gomez v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE RENE GOMEZ, No. 21-483 Agency No. Petitioner, A094-461-768 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 12, 2023** Before: CANBY, CALLAHAN, and OWENS, Circuit Judges. Jose Rene Gomez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming without opinion an immigration judge’s decision denying his application for deferral of removal under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. * 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). § 1252. We review for substantial evidence the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review. Substantial evidence supports the agency’s denial of CAT deferral because Gomez failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative); Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (“torture must be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’”) (internal citation omitted). Gomez’s challenge to the BIA’s streamlining procedure fails. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-52 (9th Cir. 2003) (BIA’s streamlined decision did not violate due process); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error required to prevail on a due process claim). The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal is otherwise denied. PETITION FOR REVIEW DENIED. 2 21-483