Ezequiel Lopez Arguelles v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 22, 2021
• Docket: 20-73633
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EZEQUIEL LOPEZ ARGUELLES, No. 20-73633

Petitioner, Agency No. A215-857-744

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

Respondent.

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

Submitted December 14, 2021**

Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges. Ezequiel Lopez Arguelles, a native and citizen of Mexico, 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 asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), and

* 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). cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d

1182, 1184-85 (9th Cir. 2006). We review de novo questions of law and claims of

due process violations in immigration proceedings. Padilla-Martinez v. Holder,

770 F.3d 825, 830 (9th Cir. 2014). We deny in part and dismiss in part the petition

for review.

The record does not compel the conclusion that Lopez Arguelles established

changed or extraordinary circumstances to excuse his untimely asylum application.

See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)-(5). Thus, his asylum claim

fails.

Lopez Arguelles does not make any argument challenging the dispositive

determination that he failed to establish a nexus to a protected ground. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not

specifically raised and argued in a party’s opening brief are waived). Thus, his

withholding of removal claim fails.

Substantial evidence supports the BIA’s denial of CAT relief because Lopez

Arguelles failed to show it is more likely than not he will be tortured by or with the

consent or acquiescence of the government if returned to Mexico. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

2 20-73633 Lopez Arguelles’s contentions that the BIA engaged in improper fact-

finding in assessing his cancellation of removal claim fail as unsupported by the

record, where the BIA properly reviewed the IJ’s factual findings regarding which

child was in therapy for clear error and the BIA’s analysis contains no other facts

that are inconsistent with the facts found by the IJ. See 8 C.F.R. § 1003.1(d)(3)(i)-

(ii) (BIA reviews IJ’s factual findings for clear error and discretionary

determinations de novo); Ridore v. Holder, 696 F.3d 907, 917-19 (9th Cir 2012)

(explaining clear error review process). We otherwise lack jurisdiction to review

the discretionary determination that Lopez Arguelles failed to show exceptional

and extremely unusual hardship to a qualifying relative for purposes of

cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Martinez-Rosas v.

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

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

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 20-73633