MORENO MENDOZA v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-01-22No. No. 19-71424

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The court dismissed the withholding of removal claim due to waiver and lacked jurisdiction to review it, while denying the Convention Against Torture claim on the merits because Moreno-Mendoza did not meet his burden of proof.

Alberto Moreno-Mendoza, a Mexican national, sought court review of an immigration agency decision rejecting his request to avoid removal to Mexico and denying him protection under the Convention Against Torture. The court found that Moreno-Mendoza did not properly raise his withholding of removal claim in his initial brief, meaning the court could not review that portion of the case. On the torture claim, the court determined that substantial evidence supported the agency's conclusion that Moreno-Mendoza failed to demonstrate he would likely face torture by the Mexican government or with its approval if returned.

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

Key issues

Whether petitioner waived his withholding of removal claim by failing to raise it in his opening brief
Whether substantial evidence supported denial of deferral of removal under the Convention Against Torture
Whether the immigration court lacked jurisdiction under Pereira v. Sessions

Procedural posture

Moreno-Mendoza petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from an immigration judge's denial of withholding of removal and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Alberto Moreno-Mendoza, 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 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. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.

In his opening brief, Moreno-Mendoza does not contest the BIAs determination that he waived challenge to the IJs denial of his withholding of removal claim, see Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a partys opening brief are waived), and we lack jurisdiction to consider his contentions as to the merits of his withholding of removal claim, see Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

Substantial evidence supports the agencys denial of deferral of removal under CAT because Moreno-Mendoza failed to show it is more likely than not he will 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 v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (concluding that petitioner did not establish the necessary “state action” for CAT relief). We reject as unsupported by the record Moreno-Mendozas contentions that the agency erred in its analysis of his claim.

Moreno-Mendozas contentions that the immigration court lacked jurisdiction or that termination is otherwise required under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), are foreclosed by Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020).

As stated in the courts June 25, 2020 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.