Antonio Borjas-Tranquilino v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
MAY 16 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO BORJAS-TRANQUILINO, No. 19-70628
AKA Antonio Borja,
Agency No. A206-406-333
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2022**
Pasadena, California
Before: IKUTA and NGUYEN, Circuit Judges, and DANIELS,*** District Judge.
Antonio Borjas-Tranquilino seeks review of a decision of the Board of
*
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).
***
The Honorable George B. Daniels, United States District Judge for the
Southern District of New York, sitting by designation.
Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s
(“IJ”) denial of his applications for cancellation of removal, asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”). We
have jurisdiction under 8 U.S.C. § 1252.
We lack jurisdiction to review the agency’s denial of Borjas-Tranquilino’s
request for cancellation of removal. The IJ and the BIA based this decision on the
conclusion that removal would not cause “exceptional and extremely unusual”
hardship, and we lack jurisdiction to review this determination. See 8 U.S.C. §§
1252(a)(2)(B)(i), 1229b(b)(1)(D); Chuyon Yon Hong v. Mukasey, 518 F.3d 1030,
1034 (9th Cir. 2008) (holding that an IJ’s “exceptional and extremely unusual
hardship … finding ‘is a subjective, discretionary judgment that has been carved
out of our appellate jurisdiction.’” (citation omitted)). Further, Borjas-Tranquilino
failed to raise a “constitutional claim” or “question of law” to the BIA and IJ’s
findings to support his request for cancellation of removal. Petitioner fails to raise
a mixed question sufficient to establish jurisdiction under Guerrero-Lasprilla v.
Barr, 140 S. Ct. 1062 (2020). See Mendez-Castro v. Mukasey, 552 F.3d 975, 980-
81 (9th Cir. 2009) (holding that the court lacks jurisdiction to review the
application of the “exceptional and extremely unusual hardship” standard to
undisputed facts because that remains a discretionary determination). Therefore,
2
without a “constitutional claim” or “question of law,” this Court does not have
jurisdiction to review that decision. See 8 U.S.C. § 1252(a)(2)(D).
Substantial evidence supports the IJ and BIA determination that Borjas-
Tranquilino failed to establish past persecution to support his asylum and
withholding of removal requests because he did not allege that he suffered harm
rising to the level of persecution. See Sharma v. Garland, 9 F.4th 1052, 1063 (9th
Cir. 2021). Moreover, Borjas-Tranquilino failed to evidence how his assault as a
teenager or the threats he received after returning to Mexico establish a well-
founded fear of future persecution or a clear probability of future persecution.
Therefore, we uphold the IJ and BIA denial of Borjas-Tranquilino’s asylum and
withholding of removal requests.
Finally, substantial evidence supports the BIA and IJ decision to deny
Borjas-Tranquilino’s CAT request because he failed to demonstrate that if he
returned to Mexico, he would more likely than not be tortured by or with the
acquiescence of the Mexican government. See 8 C.F.R. § 1208.18(a)(1); Zheng v.
Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003). 1
PETITION DENIED IN PART AND DISMISSED IN PART.
1
Because the BIA did not discuss the IJ’s determination that Borjas-
Tranquilino’s testimony was not credible, we do not address his arguments on this
issue.
3