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 as waived for failure to properly raise it on appeal and denied the withholding of removal and Convention Against Torture claims because substantial evidence supported the agency's determinations and jurisdictional limits prevented review of certain factual findings.

Nicolasa Mendoza de Martinez, a Mexican citizen, sought judicial review of immigration authorities' rejection of her applications for asylum, withholding of removal, and relief under the Convention Against Torture. The Board of Immigration Appeals had affirmed an immigration judge's denials. On appellate review, the court found that Martinez had not properly raised a challenge to the asylum denial in her opening brief, thereby forfeiting that issue. Regarding her withholding of removal claim, the court lacked jurisdiction to review the agency's findings because the case involved criminal convictions for offenses of moral turpitude and drug-related crimes, limiting review to constitutional questions and pure questions of law. Martinez's Convention Against Torture claim also failed because she did not establish that she would more likely than not face torture by the Mexican government if returned.

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

Key issues

Waiver of asylum claim through failure to raise issue in opening brief
Limited appellate jurisdiction over particularly serious crime determinations involving moral turpitude and drug crimes
Substantial evidence standard for Convention Against Torture claims

Procedural posture

Martinez petitioned for review of the Board of Immigration Appeals' dismissal of her appeal from an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture 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.