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Jose Velasco-Ruiz v. Matthew Whitaker ( 2019 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                        JAN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE DANIEL VELASCO-RUIZ,                        No.   14-71177
Petitioner,                      Agency No. A099-905-390
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2019**
Before:      TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Jose Daniel Velasco-Ruiz, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings. Zehatye v. Gonzales,
    453 F.3d 1182
    , 1184-
85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that the harm Velasco-
Ruiz suffered in Mexico did not rise to the level of past persecution. See Nagoulko
v. INS,
    333 F.3d 1012
    , 1016 (9th Cir. 2003) (explaining that persecution is
“an extreme concept”) (quotation and citation omitted); Wakkary v. Holder,
    558 F.3d 1049
    , 1059-60 (9th Cir. 2009) (petitioner failed to establish past persecution
where he was beaten and robbed on two occasions and accosted by a mob).
Substantial evidence also supports the agency’s finding that Velasco-Ruiz failed to
establish an objectively reasonable fear of future persecution in Mexico. See Halim
v. Holder,
    590 F.3d 971
    , 977 (9th Cir. 2009) (petitioner “failed to make a
compelling showing of the requisite objective component of a well-founded fear of
persecution”). Thus, his asylum claim fails.
In this case, because Velasco-Ruiz failed to establish eligibility for asylum,
he failed to demonstrate eligibility for withholding of removal. See
    Zehatye, 453 F.3d at 1190
    .
Substantial evidence also supports the agency’s denial of Velasco-Ruiz’s
CAT claim because he failed to establish that it is more likely than not he will be
tortured by or with the consent or acquiescence of the government of Mexico. See
2                                   14-71177
Zheng v. Holder,
    644 F.3d 829
    , 835-36 (9th Cir. 2011) (claims of possible torture
remain speculative).
Finally, we do not consider the materials referenced in Velasco-Ruiz’s
opening brief that are not part of the administrative record, see Fisher v. INS,
    79 F.3d 955
    , 963 (9th Cir. 1996) (en banc) (our review is limited to the administrative
record), and we lack jurisdiction to consider Velasco-Ruiz’s argument as to past
mental torture that he did not raise to the BIA, see Barron v. Ashcroft,
    358 F.3d 674
    , 677-78 (9th Cir. 2004) (petitioner must exhaust issues or claims in
administrative proceedings below).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3                                    14-71177