Jose Gutierrez-Gutierrez v. Eric Holder, Jr. , 591 F. App'x 590 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE DE JESUS GUTIERREZ- No. 11-71822
GUTIERREZ,
Agency No. A088-751-106
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Jose de Jesus Gutierrez-Gutierrez, 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 application for
asylum, withholding of removal, protection 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”) and cancellation of removal, and denying his motion to continue. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings and review de novo questions of law. Henriquez-
Rivas v. Holder, 707 F.3d 1081, 1087 (9th Cir. 2013) (en banc). We review for
abuse of discretion the denial of a motion to continue. Sandoval-Luna v. Mukasey,
526 F.3d 1243, 1246 (9th Cir. 2008). We dismiss in part, deny in part, and grant in
part the petition for review, and we remand.
We lack jurisdiction to consider Gutierrez-Gutierrez’s unexhausted
contentions regarding the IJ’s statements related to his unlawful entry. See Barron
v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We otherwise lack jurisdiction to
consider the agency’s denial of cancellation of removal based on its discretionary
hardship determination. See De Mercado v. Mukasey, 566 F.3d 810, 815-16 (9th
Cir. 2009). We reject Gutierrez-Gutierrez’s contention that the agency applied an
incorrect standard in its analysis of cancellation of removal.
The agency did not abuse its discretion by denying Gutierrez-Gutierrez’s
motion for a continuance, where he failed to demonstrate good cause. See
Sandoval-Luna, 526 F.3d at 1246.
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Gutierrez-Gutierrez does not contest the BIA’s determination that he failed
to challenge the IJ’s finding that his asylum application was time-barred. Thus, we
deny the petition for review as to Gutierrez-Gutierrez’s asylum claim.
Substantial evidence supports the agency’s denial of CAT relief because
Gutierrez-Gutierrez failed to establish that 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 Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
In denying Gutierrez-Gutierrez’s withholding of removal claim, however,
the agency found that he failed to establish a likelihood of future persecution on
account of a protected ground. When the IJ and BIA issued their decisions in this
case, they did not have the benefit of this court’s decisions in Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), Cordoba v. Holder, 726 F.3d
1106 (9th Cir. 2013), and Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014), or
the BIA’s decisions in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014), and
Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). Thus, we remand Gutierrez-
Gutierrez’s withholding of removal claim to determine the impact, if any, of these
decisions. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Each party shall bear its own costs for this petition for review.
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PETITION FOR REVIEW DISMISSED in part; DENIED in part;
GRANTED in part; REMANDED.
4 11-71822