Andres Sanchez-Vellegas v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2020
• Docket: 15-71548
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDRES SANCHEZ-VELLEGAS, No. 15-71548

Petitioner, Agency No. A090-009-417

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 9, 2020**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Andres Sanchez-Vellegas, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his applications 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 abuse of discretion the agency’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). particularly serious crime determination. Arbid v. Holder, 700 F.3d 379, 383 (9th

Cir. 2012). Review is “limited to ensuring that the agency relied on the

appropriate factors and proper evidence to reach [its] conclusion.” Avendano-

Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (internal quotation marks

omitted). We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion in determining that Sanchez-

Vellegas’s conviction for transportation or sale of a controlled substance under

California Health and Safety Code § 11352(a) is a particularly serious crime that

renders him ineligible for withholding of removal, where drug trafficking crimes

are presumed to be particularly serious, and the agency relied on the appropriate

factors and proper evidence in concluding he failed to rebut that presumption. See

8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2); Miguel-Miguel v.

Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (recognizing the “strong presumption

that drug trafficking offenses are particularly serious”). Because this determination

is dispositive, we do not reach Sanchez-Vellegas’s remaining contentions as to his

eligibility for withholding of removal. See Simeonov v. Ashcroft, 371 F.3d 532,

538 (9th Cir. 2004) (courts are not required to decide issues unnecessary to the

results they reach).

Sanchez-Vellegas does not raise, and therefore waives, any challenge to the

agency’s denial of CAT relief. See Lopez-Vasquez v. Holder, 706 F.3d 1072,

2 15-71548 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s

opening brief are waived).

We lack jurisdiction to consider the due process claim that Sanchez-Vellegas

raises for the first time in his opening brief because he did not exhaust this claim

before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004)

(court lacks jurisdiction to review claims not presented to the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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