MAGANA MANZO v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-23No. No. 16-71384

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The court sustained the agency's denial of deferral of removal under the Convention Against Torture because substantial evidence supported the finding that Magana Manzo failed to establish he would likely be tortured if returned to Mexico.

Raul Magana Manzo, a Mexican citizen, sought judicial review of the Board of Immigration Appeals' decision to deny his request for protection from removal under the Convention Against Torture. The court examined whether substantial evidence supported the agency's finding that Magana Manzo had not demonstrated it was more likely than not that he would face torture by or with the consent of the Mexican government if returned. The court found no basis to overturn the agency's determination on this factual question.

Magana Manzo raised several additional arguments, including claims that he waived by not fully presenting them to the immigration judge, that the agency misapplied the legal standard for torture claims, and that the agency failed to consider his evidence. The court rejected these contentions as either procedurally waived, outside the court's jurisdiction, or unsupported by the record. The court maintained an existing stay of his removal pending issuance of its mandate.

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

Key issues

Whether substantial evidence supports denial of Convention Against Torture protection
Whether petitioner established government torture or acquiescence for CAT purposes
Procedural waiver of claims not properly presented to the immigration judge
Jurisdictional limitations on reviewing agency legal interpretations not presented to the agency

Procedural posture

Magana Manzo petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from an immigration judge's denial of his Convention Against Torture deferral application.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Raul Magana Manzo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges (“IJ”) decision denying his application for deferral of removal under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. See Nasrallah v. Barr, ––– U.S. ––––, 140 S. Ct. 1683, 1694, 207 L.Ed.2d 111 (2020) (“[8 U.S.C.] §§ 1252 (a)(2)(C) and (D) do not preclude judicial review of a noncitizens factual challenges to a CAT order.”). We review for substantial evidence the agencys factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

In his opening brief, Magana Manzo does not contend that the BIA erred in finding he waived any challenge to the IJs determinations as to his removability, or that his conviction under Cal. Health & Safety Code § 11351(a) rendered him ineligible for cancellation of removal, asylum, and withholding of removal. 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 his opening brief).

Substantial evidence supports the BIAs denial of deferral of removal under CAT because Magana Manzo failed to show it is more likely than not he 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); see also Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not establish the necessary “state action” for CAT relief).

To the extent Magana Manzo contends the IJ applied an incorrect legal standard in the analysis of acquiescence under CAT, we lack jurisdiction to consider the contention. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (concluding the court lacks jurisdiction to review claims not presented to the agency). We reject as unsupported by the record Magana Manzos additional contentions that the agency misapplied the law or otherwise erred in its analysis of his deferral of removal under CAT claim.

Magana Manzos contention that the agency did not consider evidence fails. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“[BIA] does not have to write an exegesis on every contention”) (citation and internal quotation marks omitted); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (concluding petitioner did not overcome the presumption that the BIA reviewed the record).

As stated in the courts August 3, 2016 order, the stay of removal remains in place until the issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.