Julio Choy-Alvarez v. Jefferson Sessions

FILED NOT FOR PUBLICATION DEC 15 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JULIO ENRIQUE CHOY-ALVAREZ and No. 15-71176 ISABEL MATILDA SEBASTIAN- FUENTES, Agency Nos. A072-119-249 A072-403-636 Petitioners, 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 December 5, 2017 San Francisco, California Before: GRABER and N.R. SMITH, Circuit Judges, and ROSENTHAL,** Chief District Judge. Julio Enrique Choy-Alvarez and Isabel Matilda Sebastian-Fuentes, husband and wife, petition for review of the Board of Immigration Appeals’ (“BIA”) * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. dismissal of their appeal of an immigration judge’s (“IJ”) denial of their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition for review. 1. We lack jurisdiction to “review [the] determination of the Attorney General” that Choy-Alvarez is barred from asylum because he “has engaged in a terrorist activity.” 8 U.S.C. §§ 1158(b)(2)(A)(v) & (D), 1182(a)(3)(B)(i)(I), 1227(a)(4)(B). However, we retain jurisdiction over legal questions relating to the scope and meaning of the terrorism bar, withholding of removal, and relief under CAT. See Khan v. Holder, 584 F.3d 773, 780 (9th Cir. 2009). To the extent we have jurisdiction, the evidence does not compel us to conclude that the BIA erred in determining that Choy-Alvarez was ineligible for asylum or withholding of removal, because he had engaged in terrorist activity.1 See Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc) (holding that we must uphold the agency’s determination unless “the evidence not only supports, but compels the conclusion that the asylum decision was incorrect” 1 Choy-Alvarez failed to present any specific argument in his opening brief that the BIA’s conclusions denying CAT relief were legally or factually erroneous. Thus, he waived this issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996). 2 (internal quotation marks omitted)). First, substantial evidence supports the BIA’s adverse credibility finding with regard to Choy-Alvarez’s knowledge and relationship with the Shining Path terrorist organization. Choy-Alvarez presented inconsistent testimony, for which the BIA found he was unable to provide a reasonable explanation. Second, substantial evidence supports the BIA’s conclusion that Choy-Alvarez failed to meet his burden of proof of establishing eligibility for asylum and withholding of removal. Because Choy-Alvarez’s relationship and activities with the Shining Path indicated that the terrorist bar may apply, he had “the burden of proving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d). Choy-Alvarez was unable to establish by a preponderance of the evidence that he did not provide material support to the Shining Path. 2. Substantial evidence supports the BIA’s ...

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