MENDOZA DE MARTINEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-28No. No. 19-71611

Summary · law.co

Holding. The petition for review was dismissed in part and denied in part. The court dismissed the asylum challenge due to waiver, lacked jurisdiction to review the withholding of removal determination on the grounds raised, and denied review of the Convention Against Torture denial because substantial evidence supported the agency's conclusion.

Nicolasa Mendoza de Martinez, a Mexican citizen, sought judicial review of immigration agency decisions that rejected her applications for asylum, withholding of removal, and protection under the Convention Against Torture. The court found that Martinez had not properly raised a challenge to the asylum denial in her appeal, thereby forfeiting that argument. Regarding withholding of removal, the court lacked authority to review the agency's determination that Martinez's prior criminal convictions qualified as particularly serious crimes, except on narrow constitutional or pure legal grounds, which Martinez did not invoke. For the torture claim, the court determined that substantial evidence supported the agency's finding that Martinez had not demonstrated a likelihood of government torture upon return to Mexico.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Waiver of asylum challenge through failure to raise it on appeal
Jurisdictional limits on reviewing particularly serious crime determinations
Whether substantial evidence supports denial of Convention Against Torture relief

Procedural posture

A Mexican national petitioned for review of Board of Immigration Appeals' dismissal of her appeal from an immigration judge's denial of asylum, withholding of removal, and torture-based relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Nicolasa Mendoza de Martinez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judges (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We dismiss in part and deny in part the petition for review.

Mendoza de Martinez does not raise, and therefore waives, any challenge to the BIAs determination that she failed to challenge the IJs denial of asylum. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (concluding petitioner waived challenge to issue not specifically raised and argued in the opening brief).

Because the agency found Mendoza de Martinez removable due to her convictions for a crime involving moral turpitude and a crime related to a controlled substance, our jurisdiction to review the agencys 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). To the extent Mendoza de Martinez challenges the agencys weighing of factors in its particularly serious crime determination, we lack jurisdiction to consider the contentions. See Pechenkov, 705 F.3d at 448-49. Thus, Mendoza de Martinezs withholding of removal claims fail. See 8 U.S.C. § 1231(b)(3)(B); 8 C.F.R. § 1208.16(d)(2).

Substantial evidence supports the agencys denial of deferral of removal under CAT because Mendoza de Martinez failed to show it is more likely than not she would 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 Mendoza de Martinezs contention that the agency failed to consider evidence or otherwise erred in its analysis of her claim.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.