Antonio Borjas-Tranquilino v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2022
• Docket: 19-70628
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 16 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO BORJAS-TRANQUILINO, No. 19-70628 AKA Antonio Borja, Agency No. A206-406-333 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 12, 2022** Pasadena, California

Before: IKUTA and NGUYEN, Circuit Judges, and DANIELS,*** District Judge.

Antonio Borjas-Tranquilino seeks review of a decision of the Board of

* 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). *** The Honorable George B. Daniels, United States District Judge for the Southern District of New York, sitting by designation. Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s

(“IJ”) denial of his applications for cancellation of removal, asylum, withholding

of removal, and protection under the Convention Against Torture (“CAT”). We

have jurisdiction under 8 U.S.C. § 1252.

We lack jurisdiction to review the agency’s denial of Borjas-Tranquilino’s

request for cancellation of removal. The IJ and the BIA based this decision on the

conclusion that removal would not cause “exceptional and extremely unusual”

hardship, and we lack jurisdiction to review this determination. See 8 U.S.C. §§

1252(a)(2)(B)(i), 1229b(b)(1)(D); Chuyon Yon Hong v. Mukasey, 518 F.3d 1030,

1034 (9th Cir. 2008) (holding that an IJ’s “exceptional and extremely unusual

hardship … finding ‘is a subjective, discretionary judgment that has been carved

out of our appellate jurisdiction.’” (citation omitted)). Further, Borjas-Tranquilino

failed to raise a “constitutional claim” or “question of law” to the BIA and IJ’s

findings to support his request for cancellation of removal. Petitioner fails to raise

a mixed question sufficient to establish jurisdiction under Guerrero-Lasprilla v.

Barr, 140 S. Ct. 1062 (2020). See Mendez-Castro v. Mukasey, 552 F.3d 975, 980-

81 (9th Cir. 2009) (holding that the court lacks jurisdiction to review the

application of the “exceptional and extremely unusual hardship” standard to

undisputed facts because that remains a discretionary determination). Therefore,

2 without a “constitutional claim” or “question of law,” this Court does not have

jurisdiction to review that decision. See 8 U.S.C. § 1252(a)(2)(D).

Substantial evidence supports the IJ and BIA determination that Borjas-

Tranquilino failed to establish past persecution to support his asylum and

withholding of removal requests because he did not allege that he suffered harm

rising to the level of persecution. See Sharma v. Garland, 9 F.4th 1052, 1063 (9th

Cir. 2021). Moreover, Borjas-Tranquilino failed to evidence how his assault as a

teenager or the threats he received after returning to Mexico establish a well-

founded fear of future persecution or a clear probability of future persecution.

Therefore, we uphold the IJ and BIA denial of Borjas-Tranquilino’s asylum and

withholding of removal requests.

Finally, substantial evidence supports the BIA and IJ decision to deny

Borjas-Tranquilino’s CAT request because he failed to demonstrate that if he

returned to Mexico, he would more likely than not be tortured by or with the

acquiescence of the Mexican government. See 8 C.F.R. § 1208.18(a)(1); Zheng v.

Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003). 1

PETITION DENIED IN PART AND DISMISSED IN PART.

1 Because the BIA did not discuss the IJ’s determination that Borjas- Tranquilino’s testimony was not credible, we do not address his arguments on this issue. 3