eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Ninth Circuit
 2023-01

Jose Barboza-Cortez v. Merrick Garland ( 2023 )


Menu:
 
  •                               NOT FOR PUBLICATION                        FILED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
JOSE GUADALUPE BARBOZA-CORTEZ, No.                     19-70451
Petitioner,                      Agency No. A096-387-209
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.
Jose Guadalupe Barboza-Cortez, a native and citizen of Mexico, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) decision denying his applications for
asylum, withholding of removal, and protection under the Convention Against
*
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).
Torture (“CAT”), and denying his request for voluntary departure. We have
jurisdiction under
    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 Barboza-
Cortez did not establish that the government of Mexico is unable or unwilling to
control the agents of any feared persecution. See Castro-Perez v. Gonzales,
    409 F.3d 1069
    , 1072 (9th Cir. 2005) (record did not compel a finding that the
government was unwilling or unable to control the feared harm). Thus, Barboza-
Cortez’s asylum and withholding of removal claims fail.
Substantial evidence also supports the agency’s denial of CAT protection
because Barboza-Cortez 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 Mexico.
See Aden v. Holder,
    589 F.3d 1040
    , 1047 (9th Cir. 2009); Wakkary v. Holder,
    558 F.3d 1049
    , 1067-68 (9th Cir. 2009) (no likelihood of torture).
We lack jurisdiction to review the agency’s discretionary denial of voluntary
departure. 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).
2
Barboza-Cortez does not raise a colorable legal or constitutional claim over which
we retain jurisdiction. See
    8 U.S.C. § 1252
    (a)(2)(D); Corro-Barragan v. Holder,
    718 F.3d 1174
    , 1177 (9th Cir. 2013). To the extent Barboza-Cortez challenges the
BIA’s denial of the motion to remand, the BIA did not abuse its discretion in
denying the motion where Barboza-Cortez failed to show prejudice. See Vargas-
Hernandez v. Gonzales,
    497 F.3d 919
    , 924-25 (9th Cir. 2007) (no prejudice where
petitioner could not show the IJ would have reached a different result regarding
discretionary relief).
We do not consider the materials Barboza-Cortez references in his opening
brief that are not part of the administrative record. See Fisher v. INS,
    79 F.3d 955
    ,
963-64 (9th Cir. 1996) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3