Fernando Perez Silva v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 2020
• Docket: 18-70900
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FERNANDO PEREZ SILVA, No. 18-70900

Petitioner, Agency No. A090-549-419

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Fernando Perez Silva, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his applications for withholding of

removal and relief under the Convention Against Torture (“CAT”). Our

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law

* 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). and claims of due process violations, and review for substantial evidence the

agency’s factual findings. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir.

2014). We deny in part and dismiss in part the petition for review.

Perez Silva’s contention that the IJ lacked jurisdiction over proceedings is

foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).

We lack jurisdiction to review the agency’s discretionary determination that

Perez Silva’s conviction constitutes a particularly serious crime that bars

withholding of removal. See 8 U.S.C. § 1252(a)(2)(C); Pechenkov v. Holder, 705

F.3d 444, 448 (9th Cir. 2012) (no jurisdiction to review particularly serious crime

determination where there is no assertion of legal or constitutional error and the

only challenge is that the IJ incorrectly weighed the facts).

Substantial evidence supports the agency’s denial of CAT relief where Perez

Silva did not establish that it was more likely than not that he would be tortured in

Mexico. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (speculative

possibility of torture does not establish eligibility for CAT relief).

Perez Silva’s due process claim fails because he has not established

prejudice from the alleged violation. See Padilla-Martinez, 770 F.3d at 830

(requiring prejudice to prevail on a due process claim).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 18-70900