Angel Alcantara Rodriguez v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL ALCANTARA RODRIGUEZ, No. 18-70590
AKA Angel Alcantara,
Agency No. A088-724-176
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
Angel Alcantara Rodriguez, 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’s”) 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”), and voluntary departure, and his request for a continuance of removal
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law and constitutional claims. Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We review for abuse of discretion the denial of a
continuance. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny in
part and dismiss in part the petition for review.
Because Alcantara Rodriguez does not challenge the determinations that his
asylum application was untimely, that he failed to show a clear probability of
future persecution, and that he 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, these issues are waived. See Lopez-Vasquez v. Holder, 706 F.3d 1072,
1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s
opening brief are waived). Thus, we deny the petition for review as to his asylum,
withholding of removal, and CAT claims.
We lack jurisdiction to consider Alcantara Rodriguez’s contentions that the
IJ violated his right to due process by failing to obtain a knowing and voluntary
waiver of his right to counsel and denying him a full and fair hearing because he
failed to raise these issues before the BIA. See Barron v. Ashcroft, 358 F.3d 674,
677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented
below).
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The IJ did not abuse her discretion in denying another continuance where
Alcantara Rodriguez failed to demonstrate good cause. See 8 C.F.R. § 1003.29;
Ahmed, 569 F.3d at 1012 (factors considered in reviewing the denial of a
continuance).
We lack jurisdiction to review the discretionary determination that Alcantara
Rodriguez did not merit a grant of voluntary departure. See 8 U.S.C.
§ 1252(a)(2)(B)(i); 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). 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); Corro-Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir.
2013).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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