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 2023-01

Alejandro Tecum Hernandez v. Merrick Garland ( 2023 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                        JAN 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO TECUM HERNANDEZ,                       No.   17-70732
Petitioner,                      Agency No. A205-720-437
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2023**
Before:      GRABER, PAEZ, and NGUYEN, Circuit Judges.
Alejandro Tecum Hernandez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ’s”) decision denying his applications for
withholding of removal, protection under the Convention Against Torture
*
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).
(“CAT”), and cancellation of removal. Our jurisdiction is governed by
    8 U.S.C. § 1252
    . We review for substantial evidence the agency’s factual findings. Conde
Quevedo v. Barr,
    947 F.3d 1238
    , 1241 (9th Cir. 2020). We deny in part and
dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Tecum
Hernandez failed to establish he was or would be persecuted on account of a
protected ground. See Zetino v. Holder,
    622 F.3d 1007
    , 1016 (9th Cir. 2010) (an
applicant’s “desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground”); see
also Singh v. Barr,
    935 F.3d 822
    , 827 (9th Cir. 2019) (no remand required, despite
error under Barajas-Romero v. Lynch,
    846 F.3d 351
     (9th Cir. 2017), where agency
found “no nexus” at all). To the extent Tecum Hernandez contends the IJ ignored
a proposed particular social group, we lack jurisdiction to consider the contention.
See Barron v. Ashcroft,
    358 F.3d 674
    , 677-78 (9th Cir. 2004) (petitioner must
exhaust issues or claims in administrative proceedings below). Thus, Tecum
Hernandez’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT protection
because Tecum Hernandez 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
Guatemala. See Aden v. Holder,
    589 F.3d 1040
    , 1047 (9th Cir. 2009). We reject
2                                  17-70732
as unsupported by the record Tecum Hernandez’s contention that the BIA failed to
consider evidence relevant to his CAT claim.
We lack jurisdiction to review the BIA’s discretionary decision to deny
Tecum Hernandez’s application for cancellation of removal. See
    8 U.S.C. § 1252
    (a)(2)(B)(i); Patel v. Garland,
    142 S. Ct. 1614
    , 1622-23 (2022) (where the
agency denies a form of relief listed in
    8 U.S.C. § 1252
    (a)(2)(B)(i), federal courts
have jurisdiction to review constitutional claims and questions of law, but not
factual findings and discretionary decisions). The petition does not raise a
colorable legal or constitutional claim over which we retain jurisdiction. See
    8 U.S.C. § 1252
    (a)(2)(D); Martinez-Rosas v. Gonzales,
    424 F.3d 926
    , 930 (9th Cir.
2005).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3                                    17-70732