Carlos Comer Gordillo v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS RUBEN COMER GORDILLO, No. 20-73734

Petitioner, Agency No. A205-318-071

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

Respondent.

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

Submitted April 14, 2022** Pasadena, California

Before: CALLAHAN and VANDYKE, Circuit Judges, and ARTERTON,*** District Judge.

Carlos Ruben Comer Gordillo (Gordillo), a native and citizen of Guatemala,

petitions for review of a Board of Immigration Appeals’ (BIA) order that dismissed

* 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 Janet Bond Arterton, United States District Judge for the District of Connecticut, sitting by designation. his appeal from an Immigration Judge’s (IJ) decision denying his applications for

cancellation of removal, asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction over the asylum and

withholding claims under 8 U.S.C. § 1252. We dismiss in part and deny in part the

petition for review.

“Where, as here, the BIA cites Burbano and also provides its own review of

the evidence and law, we review both the IJ’s and the BIA’s decisions.” Ali v.

Holder, 637 F.3d 1025, 1028 (9th Cir. 2011) (citation omitted); Cordoba v. Barr,

962 F.3d 479, 481 (9th Cir. 2020).1 In the absence of a colorable legal or

constitutional claim, we lack jurisdiction to review the agency’s discretionary

determination that Gordillo was ineligible for cancellation of removal. 8 U.S.C.

§ 1252(a)(2)(B), (D); see Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.

2003); see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We

review the denial of asylum, withholding of removal, and CAT relief for substantial

evidence. Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). “Under the

substantial evidence standard, administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.”

Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (quotations omitted)

1 “Thus, we refer to the Board and IJ collectively as ‘the agency.’” Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014).

2 (citing 8 U.S.C. § 1252(b)(4)(B)).

As to cancellation of removal, Gordillo relies on Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) to support his contention that we may exercise jurisdiction

over the agency’s discretionary decision that he failed to establish the requisite

“exceptional and extremely unusual hardship.” But Guerrero-Lasprilla reinforced

that we lack jurisdiction to consider “appeals of factual determinations,” and that is

what Gordillo presents for review. 140 S. Ct. at 1073. Although Gordillo portrays

his disagreement with the agency as a legal claim, his claim ultimately boils down

to nothing more than a disagreement with the agency’s factual determinations

underlying the denial of his claim. Accordingly, we lack jurisdiction to review his

claim. Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001) (“a petitioner

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

abuse of discretion argument in constitutional garb”). Gordillo does not otherwise

raise a colorable legal or constitutional claim over which we retain jurisdiction. See

8 U.S.C. § 1252(a)(2)(D). Thus, the petition for review as to cancellation of removal

is dismissed for lack of jurisdiction.

As to asylum and withholding of removal, Gordillo feared that he would face

gang violence on account of his tattoos and status as an individual returning from

the United States. But Gordillo failed to connect his feared harm to any protected

ground, so the agency’s denial of his asylum and withholding claims is supported by

3 substantial evidence.2 See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)

(“An [applicant’s] desire to be free from harassment by criminals motivated by theft

or random violence by gang members bears no nexus to a protected ground.”). Thus,

the petition for review as to asylum and withholding of removal is denied.

As to CAT protection, the BIA did not err in its determination that Gordillo

waived the claim before the agency, see Alanniz v. Barr, 924 F.3d 1061, 1068–69

(9th Cir. 2019) (finding no error in BIA’s waiver determination), so we lack

jurisdiction to consider it. See Barron, 358 F.3d at 677–78 (holding that courts lack

jurisdiction to review claims not presented to the agency). Thus, the petition for

review as to the CAT claim is dismissed for lack of jurisdiction.

The temporary stay of removal remains in place until issuance of the mandate.

The motion for a stay of removal (ECF No. 1-2) is otherwise denied as moot.

PETITION DISMISSED in part and DENIED in part.

2 Gordillo argues that his particular social group (PSG) includes “Guatemalan nationals who came to the United States as minors.” But as the BIA found, that argument was not presented to the IJ, so it is unexhausted and we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004); see also Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019).