Roberto Medina Marvilla v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO GERARDO MEDINA No. 17-72817
MARVILLA,
Agency No. A091-663-741
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2021**
Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
Roberto Gerardo Medina Marvilla, 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, and relief 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”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
the agency’s legal conclusions and we review for substantial evidence the agency’s
factual findings. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.
2017) (en banc). We dismiss in part and deny in part the petition for review.
To the extent Medina Marvilla challenges the IJ’s removability
determination, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d
674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to consider claims not raised
to BIA).
Because Medina Marvilla was found removable due to his conviction related
to a controlled substance, our jurisdiction to review the agency’s particularly
serious crime determination is limited to colorable constitutional claims and
questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Pechenkov v. Holder, 705
F.3d 444, 448-49 (9th Cir. 2012). We reject Medina Marvilla’s contention that the
agency misapplied the law or otherwise erred in its particularly serious crime
determination, where the agency relied on appropriate factors and conducted a
case-specific inquiry. See Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019)
(“[W]e lack jurisdiction over the BIA’s ultimate determination that [petitioner]
committed a particularly serious crime . . . . But we retain jurisdiction to determine
whether the BIA applied the correct legal standard.” (internal citation and
quotation marks omitted)); Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir.
2 17-72817
2007) (recognizing the “strong presumption” that drug trafficking offenses are
particularly serious crimes and discussing the factors a petitioner must demonstrate
to rebut that presumption). We lack further jurisdiction to consider Medina
Marvilla’s contentions concerning the agency’s conclusion that his conviction is a
particularly serious crime. See Flores-Vega, 932 F.3d at 884. Thus, Medina
Marvilla’s asylum and withholding of removal claims fail. See
8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).
Substantial evidence supports the agency’s denial of deferral of removal
under CAT because Medina Marvilla 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 Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We
reject as unsupported by the record Medina Marvilla’s contention that the agency
ignored evidence or otherwise erred in its analysis of his CAT claim. Finally, we
lack jurisdiction to consider Medina Marvilla’s argument that the IJ relied on a
factual error to deny CAT relief, because it was not raised to the BIA. See Barron,
358 F.3d at 677-78.
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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