ELMER FLORES-ZUNIGA, AKA Elmer Rolando Flores v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER FLORES-ZUNIGA, AKA Elmer
Rolando Flores,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72956
Agency No. A205-315-475
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2022**
Pasadena, California
Before: NGUYEN and FORREST, Circuit Judges, and FITZWATER,*** District
Judge.
Petitioner Elmer Flores-Zuniga seeks review of a Board of Immigration
* 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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
FILED
DEC 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Appeals (BIA) decision finding that his conviction for a particularly serious crime
rendered him ineligible for withholding of removal under both the Immigration and
Naturalization Act (INA) and the Convention Against Torture (CAT). He also
challenges the denial of his applications for withholding of removal and for deferral
of removal under CAT on the merits. When, as here, the BIA conducts its own
review of the evidence and law, we must limit our review to the BIA’s decision
“except to the extent that the [immigration judge’s] opinion is expressly adopted.”
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (quoting Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
1. Forfeiture. Flores-Zuniga does not challenge in his opening brief the
BIA’s dispositive findings related to his two asserted grounds for withholding of
removal. He argues that if removed to Guatemala, he will be persecuted by his
father’s killer, but he does not challenge the BIA’s conclusion that he failed to
establish that the motive for his father’s killing was related to a protected ground or
that he failed to establish that the Guatemalan government is unable or unwilling to
protect him. Flores-Zuniga also argues that he will be targeted and persecuted
because he is a convicted sex offender, but again he does not challenge the BIA’s
dispositive findings that he failed to establish a clear probability of future
persecution or that he had the ability to relocate within Guatemala. Therefore, any

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challenge to these dispositive determinations is forfeited. Nguyen v. Barr, 983 F.3d
1099, 1102 (9th Cir. 2020); see also Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029
n.2 (9th Cir. 2019) (refusing to address “additional arguments about a well-founded
fear of future persecution because the internal relocation issue is dispositive”).
2. Particularly Serious Crime Determination. “[W]e lack jurisdiction
over the BIA’s ultimate determination that [Flores-Zuniga] committed a particularly
serious crime,” but “we retain jurisdiction to ‘determine whether the BIA applied
the correct legal standard.’” Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019)
(quoting Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010)); 8 U.S.C.
§ 1252(a)(2)(B)(ii). The BIA’s decision in In re Frentescu, 18 I. & N. Dec. 244
(B.I.A. 1982), sets out the applicable legal standard for the particularly serious crime
determination. Flores-Vega, 932 F.3d at 884.
The BIA applied the Frentescu factors in determining that Flores-Zuniga’s
California Penal Code § 647(a) conviction is a particularly serious crime. Along with
concluding that the elements of this statute—engaging in lewd or dissolute
conduct—constitute a particularly serious crime, the BIA engaged in the required
“case-specific factual analysis.” Flores-Vega, 932 F.3d at 885. It considered the
victim’s age, that sexual crimes committed against minors are exceptionally serious
crimes, and it examined the circumstances of the allegations against Flores-Zuniga.
See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1078 (9th Cir. 2015).

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Accordingly, we conclude that the agency “relie[d] on the appropriate factors and
proper evidence” in determining that Flores-Zuniga’s “conviction constitutes a
particularly serious crime” and that he is not eligible for withholding of removal
under either the INA or CAT for that reason. Flores-Vega, 932 F.3d at 885–86
(quoting Avendano-Hernandez, 800 F.3d at 1077).
3. CAT Protection. Finally, Flores-Zuniga has not established that the
record compels reversal of the agency’s denial of deferral of removal under CAT.
See Dawson v. Garland, 998 F.3d 876, 885 (9th Cir 2021). The only evidence that
Flores-Zuniga submitted in support of his claim that the Guatemalan government
would torture him or acquiesce in his torture is a country conditions report showing
that Guatemala suffers from generalized violence and civil unrest. This evidence
does not compel the conclusion that he faces a particularized risk of torture in
Guatemala. See 8 C.F.R. § 1208.16(c)(2); Dawson, 998 F.3d at 885.
PETITION DENIED.

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