Wifredo Mayorga v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WIFREDO ANTOLIN MAYORGA, AKA No. 13-72322
Wilfredo Antolin Mayorga-Aguirre,
Agency No. A074-436-674
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Wifredo Antolin Mayorga, a native and citizen of Guatemala, 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 relief under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
constitutional claims and questions of law, and review for substantial evidence the
agency’s factual findings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th
Cir. 2005). We dismiss in part and deny in part the petition for review.
Because Mayorga did not appeal the IJ’s denial of his asylum application to
the BIA, we lack jurisdiction to review his claim that he was improperly denied
asylum. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (no subject-
matter jurisdiction over legal claims not presented in administrative proceedings
below).
Contrary to Mayorga’s contentions, the agency did not err in considering his
suspended sentence, see 8 U.S.C. § 1101(a)(48)(B); Retuta v. Holder, 591 F.3d
1181, 1187-89 (9th Cir. 2010), or his sentence enhancement, see U.S. v. Rivera,
658 F.3d 1073, 1075-76 (9th Cir. 2011), abrogated on other grounds by Lopez-
Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), in determining that he had been
convicted of a per se particularly serious crime that barred withholding of removal
under 8 U.S.C. § 1231(b)(3)(B)(ii). Because Mayorga was convicted of an
aggravated felony, see United States v. Morales-Perez, 467 F.3d 1219, 1223 (9th
Cir. 2006) (holding that a § 11351.5 conviction categorically qualifies as a drug
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trafficking offense); see also Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir.
2008) (“possession of a controlled substance with the intent to sell contains a
trafficking element and is an aggravated felony”), and “an aggravated felony
conviction is considered to be a particularly serious crime . . . automatically, if the
applicant was sentenced ‘to an aggregate term of imprisonment of at least five
years[,]’” the agency was not required to consider the underlying circumstances of
Mayorga’s conviction, see Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.
2005) (quoting 8 U.S.C. § 1231(b)(3)(B)).
Substantial evidence supports the agency’s denial of deferral of removal
under CAT because Mayorga failed to establish that the Guatemalan government
would acquiesce in his torture. See Garcia-Milian v. Holder, 755 F.3d 1026,
1034-35 (9th Cir. 2014) (government was not willfully blind where it took steps to
combat the violence at issue, even if such measures were largely unsuccessful).
Finally, we reject Mayorga’s claim that the agency violated his due process
rights. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and
prejudice to prevail on a due process claim).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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