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 upheld the denial of deferral of removal under the Convention Against Torture because Magana Manzo failed to establish that he would likely face torture by or with the acquiescence of the Mexican government upon return.

Raul Magana Manzo, a Mexican national, sought judicial review of a decision denying his request to defer removal based on the Convention Against Torture (CAT). The immigration judge and Board of Immigration Appeals both rejected his claim that he faced a substantial risk of torture if returned to Mexico. On review, the court examined whether the government's factual findings were supported by substantial evidence and whether proper legal standards were applied.

The court found that Magana Manzo failed to demonstrate the required standard for CAT protection: that it was more likely than not he would be tortured by the Mexican government or with its consent or acquiescence. The court also rejected his other arguments, including claims that evidence was not considered and that legal errors occurred in the agency's analysis. Certain challenges were waived because they were not properly raised before the immigration board.

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

Key issues

Whether substantial evidence supported denial of Convention Against Torture relief
Whether petitioner established requisite state action and torture standard under CAT
Waiver of challenges not properly raised before the immigration board
Scope of judicial review over agency factual findings in removal proceedings

Procedural posture

The petitioner sought judicial review of the Board of Immigration Appeals' dismissal of his appeal from an immigration judge's denial of his Convention Against Torture deferral of removal 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.