Cesar Peril Mendoza v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2020
• Docket: 14-72857
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAR PERIL MENDOZA, AKA Pelon No. 14-72857 Mendoza, Agency No. A205-719-894 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted July 13, 2020**

Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.

Cesar Peril Mendoza, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his applications for cancellation 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). removal, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We dismiss in part and deny in part his petition.

Because the BIA did not reach the issue, we need not consider Mendoza’s

arguments that he demonstrated the requisite good moral character for cancellation

of removal notwithstanding a prior California state conviction. See Andia v.

Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). We also lack

jurisdiction to consider Mendoza’s arguments regarding the agency’s determination

that he failed to show exceptional and extremely unusual hardship to a qualifying

family member. See Arteaga-De Alvarez v. Holder, 704 F.3d 730, 735 (9th Cir.

2012). Although he contends that the BIA incorrectly found that any error in the

IJ’s analysis regarding his stepson did not result in prejudice, Mendoza has not made

out a colorable constitutional claim necessary to invoke our jurisdiction. See id. at

736.

Mendoza next contends that the record compels the finding that he would be

subjected to persecution in Guatemala on account of his membership in a particular

social group consisting of men who have taken concrete steps to oppose gang

membership and authority. However, he failed to raise this particular social group

before the agency. Because the claim is unexhausted, we lack jurisdiction to review

it. See Ahir v. Mukasey, 527 F.3d 912, 917–18 (9th Cir. 2008). Mendoza’s opening

brief does not challenge the agency’s determination that his other proposed social

2 14-72857 groups were not cognizable. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–

80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s opening

brief are waived).

Finally, Mendoza contends that the BIA erred by concluding he failed to

establish that he is eligible for CAT protection. We review this contention under the

“highly deferential” substantial evidence standard. See Singh v. Holder, 753 F.3d

826, 830 (9th Cir. 2014). The record does not compel the conclusion that Mendoza

will more likely than not be tortured if returned to Guatemala. See Robleto-Pastora

v. Holder, 591 F.3d 1051, 1058 (9th Cir. 2010). Thus, substantial evidence supports

the agency’s determination. See id.

PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.

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