Antonio Madrigal Ojeda v. Merrick Garland

Opinion

FILED NOT FOR PUBLICATION MAY 12 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO MADRIGAL OJEDA, AKA Nos. 16-70928 Antonio Madrigal, 16-73250

Petitioner, Agency No. A075-586-643

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 10, 2022** San Francisco, California

Before: WALLACE, W. FLETCHER, and SANCHEZ, Circuit Judges.

Antonio Madrigal Ojeda (“Madrigal”), a Mexican citizen and Lawful

Permanent Resident of the United States, was charged with removability under

§ 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.

* 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). § 1227(a)(2)(B)(i), after being convicted in state court of transporting

methamphetamine in violation of California Health and Safety Code § 11379. He

has filed petitions for review, seeking review of Board of Immigration (“BIA”)

decisions (1) dismissing his appeal from the decision of an Immigration Judge

(“IJ”) denying his application for asylum, withholding of removal, and Convention

Against Torture (“CAT”) protection; and (2) denying his motion to reopen. We

deny his first petition, and we dismiss his second petition for lack of jurisdiction.1

1. We have jurisdiction under 8 U.S.C. § 1252 to review the IJ and BIA’s

denial of Madrigal’s asylum, withholding, and CAT claims, because the agency

denied him relief on the merits. Perez-Palafox v. Holder, 744 F.3d 1138, 1144

(9th Cir. 2014); see also Nasrallah v. Barr, 140 S. Ct. 1683, 1689 (2020) (holding

that §§ 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s

factual challenges to a CAT order). We hold that substantial evidence supports the

IJ and BIA’s determination that Madrigal failed to prove he experienced past

persecution or a has a well-founded fear of future persecution in Mexico, and that

his proposed social group—male Mexican nationals who grew up in the United

1 We also deny Madrigal’s motions to remand [Dkt. Entry 23 (No. 16- 70928) and Dkt. Entry 25 (No. 16-73250)] because they challenge his removability on a basis not raised in any of his briefs submitted to the BIA or to this Court.

2 States—is not legally cognizable. See Delgado-Ortiz v. Holder, 600 F.3d 1148,

1151–52 (9th Cir. 2010); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29 (9th

Cir. 2016).

Because Madrigal failed to satisfy the lower standard of proof of persecution

required to establish eligibility for asylum, he “necessarily fails to satisfy the more

stringent standard for withholding of removal.” Ramirez-Munoz, 816 F.3d at 1230.

Likewise, Madrigal failed to carry the burden of proving that it was more likely

than not that he would be tortured with the acquiescence of the government if

returned to Mexico, given that “torture is more severe than persecution and the

standard of proof for the CAT claim is higher than the standard of proof for an

asylum claim.” Nuru v. Gonzalez, 404 F.3d 1207, 1224 (9th Cir. 2005).

2. We lack jurisdiction to review the BIA’s denial of Madrigal’s motion to

reopen his proceedings based on pending, but not yet obtained, post-conviction

relief because Madrigal fails to present a colorable legal or constitutional claim.

See Monroy v. Lynch, 821 F.3d 1175, 1177 (9th Cir. 2016) (explaining that

questions of law raised under 8 U.S.C. § 1252(a)(2)(D) must be “colorable”);

Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001) (“[A] petitioner may

not create jurisdiction that Congress chose to remove simply by cloaking an abuse

of discretion argument in constitutional garb.”).

3 Petition in No. 16-70928 is DENIED and petition in No. 16-73250 is

DISMISSED.