FILED NOT FOR PUBLICATION FEB 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GILBERTO TORRES CALVILLO, No. 15-71265 Petitioner, Agency No. A092-168-907 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 14, 2018 San Francisco, California Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,** District Judge. Gilberto Torres Calvillo (“Calvillo”), native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), affirming an immigration judge’s (“IJ”) denial of his application for withholding of removal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review. 1. The BIA did not abuse its discretion in concluding that Calvillo’s conviction for possession of marijuana, Cal. Health & Safety Code § 11359 (1999), was a particularly serious crime. See 8 U.S.C. § 1231(b)(3)(B)(iv). Calvillo does not challenge the BIA’s conclusion that, under Matter of Y–L–, 23 I. & N. Dec. 270 (A.G. 2002), his conviction was a particularly serious crime. Rather, Calvillo argues that the application of Matter of Y–L– was impermissibly retroactive under Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007). The BIA did not err in concluding that the IJ could retroactively apply Matter of Y–L–, under the retroactivity test established by Montgomery Ward Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982). See Garfias-Rodriguez v. Holder, 702 F.3d 504, 519-20 (9th Cir. 2012) (en banc). Applying the Montgomery Ward factors, we conclude that three of the five factors weigh against Calvillo, because there is no evidence that Calvillo relied on the former rule and the degree of burden is minimal. See Montgomery Ward, 691 F.2d at 1333. Therefore, the BIA properly concluded that Calvillo was barred from relief by withholding of removal. 2. Substantial evidence supports the BIA’s determination that Calvillo did not establish a clear probability of torture. The BIA concluded that Calvillo was not 2 likely to suffer torture upon his return to Mexico from any drug cartel or organization. Calvillo does not challenge this conclusion and points to no evidence to establish he is likely to be tortured upon his return, see Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017), therefore he has failed to carry his burden of proof on this issue, see Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (noting issues not raised in opening brief are waived). Because relief under CAT requires evidence “that torture will more likely than not occur” and that “sufficient state action [is] involved in the torture,” see Barajas-Romero, 846 F.3d at 363, we need not address whether ...
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