Ernesto Hernandez-Velasco v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO HERNANDEZ-VELASCO, No. 19-71168
Petitioner, Agency No. A205-576-046
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Ernesto Hernandez-Velasco, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen and dismissing his appeal from an immigration judge’s (“IJ”) decision
denying his applications for withholding of removal, relief under the Convention
*
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).
Against Torture (“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. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).
We review for abuse of discretion the denial of a motion to reopen. Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de novo questions of law.
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny in part and
dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Hernandez-
Velasco did not establish a clear probability of future persecution in Mexico. See
Lanza v. Ashcroft, 389 F.3d 917, 934-35 (9th Cir. 2004) (no clear probability of
future persecution). We decline to reach Hernandez-Velasco’s contentions as to a
pattern and practice of persecution that were raised for the first time in his reply
brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues
raised for the first time in the reply brief are waived.”). Thus, Hernandez-
Velasco’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Hernandez-Velasco did not establish that it is more likely than not he would 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).
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As to cancellation of removal, we lack jurisdiction to review the agency’s
discretionary determination that Hernandez-Velasco did not show exceptional and
extremely unusual hardship to a qualifying relative for purposes of cancellation of
removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d
926, 930 (9th Cir. 2005). 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, 424 F.3d at 930. Hernandez-Velasco’s reliance
on Guerrero-Lasprilla v. Barr, ––– U.S. ––––, 140 S. Ct. 1062 (2020), is
misplaced. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)
(application of a legal standard to undisputed facts is a legal question under 8
U.S.C. § 1252(a)(2)(D)); see also Mendez-Castro v. Mukasey, 552 F.3d 975, 979
(9th Cir. 2009) (Ramadan does not apply to the subjective hardship standard).
The BIA did not abuse its discretion in denying Hernandez-Velasco’s
motion to reopen to consider additional evidence for cancellation of removal, even
to the extent the evidence of hardship he submitted with the motion is not
cumulative, where he failed to demonstrate prima facie eligibility for relief. See
Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (“The BIA is
entitled to deny a motion to reopen where the applicant fails to demonstrate prima
facie eligibility for the underlying relief.”).
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The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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