Vasquez Vasquez v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENZO VASQUEZ VASQUEZ, No. 22-991
Agency No.
Petitioner, A206-547-375
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 16, 2023**
Portland, Oregon
Before: TALLMAN and RAWLINSON, Circuit Judges, and RAKOFF, District
Judge.***
Petitioner Lorenzo Vasquez Vasquez seeks reversal of the final order of
the Board of Immigration Appeals (BIA) dismissing his appeal and affirming
the decision of the Immigration Judge (IJ) denying his application for
*
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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
cancellation of removal, asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). We have jurisdiction pursuant to 8
U.S.C. § 1252. Because the parties are familiar with the facts of this appeal, we
do not recite them here. We dismiss in part and deny in part the petition.
“Where the BIA conducts its own review of the evidence and law, rather
than adopting the IJ’s decision, our review is limited to the BIA’s decision,
except to the extent the IJ’s opinion is expressly adopted.” Rodriguez v. Holder,
683 F.3d 1164, 1169 (9th Cir. 2012) (cleaned up). We review factual findings
related to eligibility for asylum, withholding of removal, and CAT for
substantial evidence. 8 U.S.C. § 1252(b)(4)(B); Ruiz-Colmenares v. Garland,
25 F.4th 742, 748 (9th Cir. 2022) (CAT protection); Sharma v. Garland, 9 F.4th
1052, 1060 (9th Cir. 2021) (asylum and withholding of removal).
1. To be eligible for cancellation of removal, a petitioner must show in
part that they are a person of good moral character during the ten years
immediately preceding the application. 8 U.S.C. § 1229b(b)(1)(A)–(D).
Petitioner urges this court to assert jurisdiction over the IJ’s finding that
Petitioner lacks good moral character and is therefore ineligible for cancellation
of removal. However, 8 U.S.C. § 1252(a)(2)(B)(i) precludes our jurisdiction
over discretionary moral character determinations under the “catchall” provision
of 8 U.S.C. § 1101(f). And on appeal Petitioner fails to raise a colorable legal
or constitutional question. 8 U.S.C. § 1252(a)(2)(D); see Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
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2. To be eligible for asylum, a petitioner must either file an application
within one year of arrival or show that the petitioner is eligible for an exception
to the deadline. 8 U.S.C. § 1158(a)(2)(B), (D). It is undisputed that Petitioner
entered the United States in 2000 and did not apply for asylum until 2015.
Before the agency, he unavailingly argued he was eligible for an exception. In
his opening brief, Petitioner does not challenge the agency’s determination that
he failed to timely apply for asylum and focuses instead on his risk of
persecution. Because Petitioner chose not to address the agency’s
determination that his asylum application is time barred, he has waived the issue
on appeal. See Fed. R. App. P. 28(a)(8)(A) (requiring opening briefs to contain
all arguments).
We also find that substantial evidence supported the BIA’s determination
that Petitioner failed to establish his eligibility for withholding of removal.
Petitioner failed to adduce evidence of past persecution and the BIA
appropriately found that evidence that other members of Petitioner’s family who
also owned land continued to live in Mexico unharmed undermined Petitioner’s
contention landowners in his hometown and of his ethnic background would
likely be persecuted. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.
2006) (noting that “[t]o qualify for withholding of removal, an alien must
demonstrate that it is more likely than not that he would be subject to
persecution on one of the specified grounds”).
3. To be eligible for CAT protection, a petitioner must show that “it is
3 22-991
more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2). “The same ‘more likely than
not’ standard applies to CAT protection as it does to withholding of removal;
however, for CAT protection, the harm feared must meet the definition of
torture.” Sharma 9 F.4th at 1067 (quoting Tamang v. Holder, 598 F.3d 1083,
1095 (9th Cir. 2010)). Petitioner fails to demonstrate that the harm he fears
meets the definition of torture or that he would be tortured if removed to
Mexico. Instead, he points generally to country conditions reports showing
conditions in Mexico have deteriorated. Accordingly, his CAT claim fails.
PETITION DISMISSED in part and DENIED in part.
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