Alcantar-Garcia v. Garland ( 2023 )

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Rosa Elena Alcantar-Garcia, No. 22-24
Petitioner, Agency No. A202-022-939
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.
Rosa Elena Alcantar-Garcia (Alcantar-Garcia), a native and citizen of
Mexico, petitions for review of the Board of Immigration Appeals’ (BIA)
decision finding her ineligible for asylum, withholding of removal, protection
under the Convention Against Torture (CAT), and cancellation of removal. We
have jurisdiction under 8 U.S.C. § 1252. Reviewing the agency’s factual
*
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).
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findings for substantial evidence and its legal conclusions de novo, see Flores
Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022), we deny the petition for
review.
1. Alcantar-Garcia forfeited any challenge to the denial of CAT
protection or asylum because she did not raise it in her opening brief. See Rizk
v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011).
2. Alcantar-Garcia challenges the agency’s determination that she
failed to establish the good moral character required for regular and special rule
cancellation of removal. To the extent Alcantar-Garcia raises any factual
challenge to this determination, we lack jurisdiction to consider it. See Patel v.
Garland, 142 S. Ct. 1614, 1627 (2022). We have jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D) to consider claims of constitutional error. Id. at 1619. Alcantar-
Garcia argues that an ICE hold violated her Eighth Amendment rights by
delaying her state criminal proceedings and causing her 180-day confinement,
which in turn prevented her from establishing good moral character for the
purposes of cancellation of removal. This claim is not colorable because the
Eighth Amendment does not apply to civil immigration proceedings. See
Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir. 1999); see also INS v. Lopez-
Mendoza, 468 U.S. 1032, 1038 (1984).
3. Substantial evidence supports the agency’s denial of Alcantar-
Garcia’s withholding of removal claim on the ground that she failed to establish
membership in the proposed particular social group of Mexican women with
2
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disabilities. Despite being afforded additional time to do so, Alcantar-Garcia
failed to provide any diagnosis or medical documentation of her disability. Cf.
Acevedo Granados v. Garland, 992 F.3d 755, 763 (9th Cir. 2021) (noting
petitioner brought forward “documented clinical diagnoses by licensed
professionals”). Furthermore, Alcantar-Garcia testified that she has never been
diagnosed with a disability and that she could not think of a social group in
Mexico to which she belonged. Other evidence presented, including her
children’s medical records and testimony by her children’s former caseworker,
does not compel the conclusion she is disabled and a member of her proposed
particular social group.1
4. We deny Alcantar-Garcia’s request to remand to the BIA based on
new evidence of post-conviction relief (Dkt. No. 23). 8 U.S.C. § 1252(b)(4)(A)
(limiting our review to the administrative record on which the order of removal
is based); see also Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc)
(new evidence may be added to the record through a motion to reopen with the
agency).
5. The motion for a stay of removal (Dkt. No. 2) is also denied. The
temporary stay of removal is lifted.
PETITION DENIED.
1
In light of this disposition, we need not reach the parties’ remaining arguments
regarding withholding of removal. See Simeonov v. Ashcroft, 371 F.3d 532, 538
(9th Cir. 2004).
3