Hugo Ernesto Gonzalez Mejia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO ERNESTO GONZALEZ MEJIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-496
Agency No. A075-606-109
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2023
San Francisco, California
Before: FRIEDLAND and R. NELSON, Circuit Judges, and CARDONE,**
District Judge.
Petitioner Hugo Ernesto Gonzalez-Mejia, a native and citizen of El
Salvador, petitions for review of two decisions by the Board of Immigration
Appeals (“BIA”). The first order terminated Gonzalez-Mejia’s withholding of
removal, and the second order affirmed an Immigration Judge’s (“IJ”) denial of
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
FILED
MAR 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2 21-496
deferral of removal under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
1. The BIA terminated Petitioner’s withholding of removal because it
determined that his 2019 assault conviction constituted a particularly serious
crime. Our review of this determination “is limited to ensuring that the agency
relied on the appropriate factors and proper evidence to reach this conclusion.”
Bare v. Barr, 975 F.3d 952, 966 (9th Cir. 2020) (cleaned up) (quoting
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)). We
review the BIA’s determination for abuse of discretion. Id. at 963 (citing Arbid
v. Holder, 700 F.3d 379, 385 (9th Cir. 2012) (per curiam)).
The BIA did not abuse its discretion in holding that Petitioner’s assault
conviction constituted a particularly serious crime. It properly considered all of
the appropriate factors, including the nature of Petitioner’s conviction, the type
of sentence imposed, and the circumstances and underlying facts of the
conviction. See id. at 961 (citing In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA
2007)). The BIA did not abuse its discretion by failing to explicitly consider
that Petitioner’s sentence was on the low end of the statutory range. See
Hernandez v. Garland, 52 F.4th 757, 768 (9th Cir. 2022). Nor did the BIA
abuse its discretion by omitting a discussion of the credits for “good time/work
time” and time served that were applied to Petitioner’s sentence. Cf. Pepper v.
United States, 562 U.S. 476, 501 n.14 (2011) (“An award of good time credit
. . . does not affect the length of a court-imposed sentence . . . .”); Burr v.

-- 2 of 4 --

3 21-496
Edgar, 292 F.2d 593, 594–95 (9th Cir. 1961) (concluding that work time and
good time credits did not affect the length of a petitioner’s sentence for the
purpose of assessing deportability based on the commission of a “crime
involving moral turpitude”). Finally, the BIA did not abuse its discretion by
crediting the victim’s account of the assault over Petitioner’s, to the extent that
it did so, in assessing the circumstances and underlying facts of the conviction.
See Garland v. Ming Dai, 141 S. Ct. 1669, 1681 (2021).
The BIA also considered proper evidence while making its determination.
The BIA primarily relied on Petitioner’s 2019 probation report, which contained
accounts of the assault from both Petitioner and the assault victim. We have
upheld the BIA’s reliance on similar materials where, as here, the information in
those materials was uncontested at the time the BIA made its decision. See
Bare, 975 F.3d at 964–65; Hernandez, 52 F.4th at 767.1
2. The agency also denied Petitioner’s application for CAT deferral,
because he failed to demonstrate that he would be tortured with the consent or
acquiescence of the Salvadoran government. We review this factual finding for
substantial evidence, meaning “we treat [the finding] as ‘conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” B.R.
v. Garland, 26 F.4th 827, 835 (9th Cir. 2022) (quoting Velasquez-Gaspar v.
1 Because the record does not indicate that the BIA ignored Petitioner’s
evidence or arguments while making its particularly serious crime
determination, Petitioner has not established a due process violation. See
Najmabadi v. Holder, 597 F.3d 983, 990–91 (9th Cir. 2010).

-- 3 of 4 --

4 21-496
Barr, 976 F.3d 1062, 1064 (9th Cir. 2020)).
Substantial evidence supports the agency’s conclusion that Salvadoran
officials will not acquiesce in any future torture Petitioner might face. Like the
IJ below, we acknowledge that conditions for LGBTQ individuals in El
Salvador are “far from ideal.” But the record shows that El Salvador has laws
in force protecting LGBTQ individuals, and the record contains examples of the
Salvadoran government enforcing those laws, albeit imperfectly. Cf. Del Cid
Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016) (per curiam) (upholding
a denial of CAT relief where “Salvadoran law prohibits extrajudicial killings
and violence, and there is substantial evidence that the government enforces
those laws—albeit imperfectly—against both gang members and rogue police
officers”). While Petitioner cites some instances where Salvadoran officials
have themselves tortured LGBTQ individuals, this generalized evidence, on its
own, does not compel the conclusion that the Salvadoran government will turn a
blind eye to Petitioner’s uncle’s threats to torture him. See Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam).2
3. The stay of removal remains in place until the mandate issues. The
supplemental motion to stay removal is otherwise denied.
PETITION FOR REVIEW DENIED.
2 Because substantial evidence supports the agency’s conclusion that the
Salvadoran government will not acquiesce in future torture, we need not address
Petitioner’s arguments regarding the agency’s relocation analysis. See, e.g.,
B.R., 26 F.4th at 845.

-- 4 of 4 --