Andres Romero v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRES ROMERO, No. 18-70754
Petitioner, Agency No. A029-142-390
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Andres Romero, a native and citizen of El Salvador, 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, protection under the Convention Against Torture
*
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).
(“CAT”), cancellation of removal, and special rule cancellation of removal under
the Nicaragua Adjustment and Central American Relief Act (“NACARA”). Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
agency’s particularly serious crime determination. Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1077 (9th Cir. 2015). We review for substantial evidence the
agency’s factual findings, and review de novo questions of law. Conde Quevedo v.
Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We dismiss in part and deny in part the
petition for review.
Our jurisdiction to review the agency’s denial of Romero’s applications for
cancellation of removal and NACARA special rule cancellation of removal is
limited to questions of law and constitutional claims. We lack jurisdiction to
review these decisions. See 8 U.S.C. § 1252(a)(2)(B); Patel v. Garland, 142 S. Ct.
1614, 1622-23 (2022) (where the agency denies a form of relief listed in 8 U.S.C.
§ 1252(a)(2)(B)(i), federal courts have jurisdiction to review constitutional claims
and questions of law, but not factual findings and discretionary decisions); see also
Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010) (per curiam) (court lacks
jurisdiction to review agency’s NACARA eligibility determination). The petition
does not raise a colorable legal or constitutional claim over which we retain
jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); see also Torres-Aguilar v. INS, 246
F.3d 1267, 1271 (9th Cir. 2001) (abuse of discretion argument cloaked as due
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process claim not colorable).
The agency did not abuse its discretion in determining that Romero’s 1999
conviction was a particularly serious crime that barred him from asylum and
withholding of removal, where the agency considered the correct factors. See
Avendano-Hernandez, 800 F.3d at 1077 (review limited to ensuring agency relied
on the appropriate factors and proper evidence); Anaya-Ortiz v. Holder, 594 F.3d
673, 678 (9th Cir. 2010) (“[A]ll reliable information may be considered in making
a particularly serious crime determination . . . .”) (internal quotation marks
omitted). Thus, Romero’s asylum and withholding of removal claims fail.
In light of this disposition, we need not reach Romero’s remaining
contentions regarding the merits of his asylum and withholding of removal claims.
See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts are not
required to decide issues unnecessary to the results they reach).
Substantial evidence supports the agency’s denial of deferral of removal
under CAT because Romero 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 El
Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
Romero’s claims that the IJ violated due process by failing to act as a neutral
factfinder, misstating the record, and erroneously admitting evidence fail because
he has not shown error. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
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(error required to prevail on a due process claim).
To the extent Romero claims the IJ erred in denying voluntary departure and
preventing him from seeking adjustment of status, and that he received ineffective
assistance of counsel, we lack jurisdiction because he failed to raise these issues to
the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks
jurisdiction to review claims not presented to the agency); see also Puga v.
Chertoff, 488 F.3d 812, 815-16 (9th Cir. 2007) (ineffective assistance of counsel
claims must be raised in a motion to reopen before the BIA).
We do not consider the materials Romero references in his opening brief that
are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64
(9th Cir. 1996) (en banc).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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