Jose Cruz v. Loretta E. Lynch , 637 F. App'x 473 ( 2016 )

NOT FOR PUBLICATION FILED
MAR 2 2016
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LEYVA CRUZ, No. 13-71594
Petitioner, Agency No. A072-668-382
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Jose Leyva Cruz, a native and citizen of Guatemala, 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, protection under the Convention Against Torture (“CAT”), and voluntary
*
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).
departure. 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, 1184-84 (9th Cir. 2006). We deny in part and dismiss in part the petition for
review.
Substantial evidence supports the agency’s conclusion that even if Leyva
Cruz had established past persecution, a showing of changed conditions in
Guatemala rebutted any presumption of a well-founded future fear of persecution.
See Sowe v. Mukasey, 538 F.3d 1281, 1286 (9th Cir. 2008) (substantial evidence
supported agency’s conclusion that changed country conditions rebutted
presumption of a well-founded fear). Thus, we deny the petition as to Leyva
Cruz’s asylum claim.
Because Leyva Cruz failed to establish eligibility for asylum, his
withholding of removal claim necessarily fails. See Zehatye, 453 F.3d at 1190
(petitioner’s burden of proof for withholding of removal is more demanding than
asylum).
Substantial evidence also supports the agency’s denial of CAT relief because
Leyva Cruz did not establish it is more likely than not he would be tortured at the
instigation of, or with the acquiescence of, the Guatemalan government. See
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
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We reject Leyva Cruz’s contention that the BIA erred in refusing his request
for a remand.
Finally, Leyva Cruz did not raise a constitutional or legal claim regarding
the agency’s denial of voluntary departure, and we therefore lack jurisdiction to
review that discretionary determination. See 8 U.S.C. § 1229c(f); see also
Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 13-71594