Francisco Javier Martinez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER MARTINEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1466
Agency No.
A209-131-959
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2023**
Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges.
Francisco Javier Martinez, a native and citizen of the Dominican Republic,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s decision denying his
applications for withholding of removal and protection under the Convention
* 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).
FILED
NOV 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Against Torture (“CAT”), and denying his motion for administrative closure. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
agency’s particularly serious crime determination. Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1077 (9th Cir. 2015). We review for substantial evidence the
agency’s factual findings, and review de novo questions of law. Conde Quevedo v.
Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We review denials of administrative
closure for abuse of discretion. See Gonzalez-Caraveo v. Sessions, 882 F.3d 885,
891-93 (9th Cir. 2018). We deny the petition for review.
The agency did not abuse its discretion in determining that Martinez’s 2021
conviction was a particularly serious crime that barred him from withholding of
removal, where the agency considered the correct factors. See Avendano-
Hernandez, 800 F.3d at 1077 (review limited to ensuring agency relied on the
appropriate factors and proper evidence); Anaya-Ortiz v. Holder, 594 F.3d 673,
678 (9th Cir. 2010) (“[A]ll reliable information may be considered in making a
particularly serious crime determination . . . .” (citation and internal quotation
marks omitted)).
We do not address Martinez’s contentions as to the merits of his withholding
of removal claim because the BIA did not deny relief on these grounds. See
Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing
the decision of the BIA, we consider only the grounds relied upon by that agency.”

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(citation and internal quotation marks omitted)). Thus, Martinez’s withholding of
removal claim fails.
Substantial evidence supports the agency’s denial of deferral of removal
under CAT because Martinez 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
the Dominican Republic. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir.
2009).
Because the BIA relied on relevant factors, it did not abuse its discretion in
denying the motion for administrative closure where Martinez’s likelihood of
success on an alternative form of relief was speculative. See Gonzalez-Caraveo,
882 F.3d at 891-93 (non-exhaustive list of factors in Matter of Avetisyan, 25 I. &
N. Dec. 688 (BIA 2012), provides standard for reviewing administrative closure
decisions).
Martinez’s claim the agency violated due process by relying on
misrepresentations made by the government and preventing his witness from
testifying fail for lack of prejudice. See Colmenar v. INS, 210 F.3d 967, 971 (9th
Cir. 2000) (“prejudice . . . means that the outcome of the proceeding may have
been affected by the alleged violation.”).
PETITION FOR REVIEW DENIED.

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