Ezequiel Lopez Arguelles v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EZEQUIEL LOPEZ ARGUELLES, No. 20-73633
Petitioner, Agency No. A215-857-744
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Ezequiel Lopez Arguelles, 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 (“IJ”) decision denying his applications for asylum,
withholding of removal, relief under the Convention Against Torture (“CAT”), and
*
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).
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006). We review de novo questions of law and claims of
due process violations in immigration proceedings. Padilla-Martinez v. Holder,
770 F.3d 825, 830 (9th Cir. 2014). We deny in part and dismiss in part the petition
for review.
The record does not compel the conclusion that Lopez Arguelles established
changed or extraordinary circumstances to excuse his untimely asylum application.
See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)-(5). Thus, his asylum claim
fails.
Lopez Arguelles does not make any argument challenging the dispositive
determination that he failed to establish a nexus to a protected ground. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not
specifically raised and argued in a party’s opening brief are waived). Thus, his
withholding of removal claim fails.
Substantial evidence supports the BIA’s denial of CAT relief because Lopez
Arguelles 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).
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Lopez Arguelles’s contentions that the BIA engaged in improper fact-
finding in assessing his cancellation of removal claim fail as unsupported by the
record, where the BIA properly reviewed the IJ’s factual findings regarding which
child was in therapy for clear error and the BIA’s analysis contains no other facts
that are inconsistent with the facts found by the IJ. See 8 C.F.R. § 1003.1(d)(3)(i)-
(ii) (BIA reviews IJ’s factual findings for clear error and discretionary
determinations de novo); Ridore v. Holder, 696 F.3d 907, 917-19 (9th Cir 2012)
(explaining clear error review process). We otherwise lack jurisdiction to review
the discretionary determination that Lopez Arguelles failed to 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 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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