Francisco Padilla-Lopez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2021
• Docket: 20-70990
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO PADILLA-LOPEZ, No. 20-70990

Petitioner, Agency No. A096-221-106

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

Respondent.

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

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Francisco Padilla-Lopez, 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 relief under the Convention Against

Torture (“CAT”) and denying his motion to remand. We have jurisdiction under 8

* 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). U.S.C. § 1252. We review for substantial evidence the agency’s factual findings.

Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We review de novo

claims of due process violations in immigration proceedings. Jiang v. Holder, 754

F.3d 733, 738 (9th Cir. 2014). We review for abuse of discretion the BIA’s denial

of a motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.

2005). We deny the petition for review.

Substantial evidence supports the agency’s denial of CAT relief because

Padilla-Lopez 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); see also Delgado-Ortiz v.

Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (“Petitioners’ generalized evidence of

violence and crime in Mexico is not particular to Petitioners and is insufficient” to

establish eligibility for CAT relief); Wakkary v. Holder, 558 F.3d 1049, 1067-68

(9th Cir. 2009) (no likelihood of torture).

The BIA did not err in concluding the IJ did not violate Padilla-Lopez’s right

to due process by denying his request for a continuance. See Padilla-Martinez v.

Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a

petitioner must demonstrate both a violation of rights and prejudice.”).

Padilla-Lopez’s contention that the immigration court lacked jurisdiction

over his proceedings is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895

2 20-70990 (9th Cir. 2020) (“the lack of time, date, and place in the NTA sent to [petitioner]

did not deprive the immigration court of jurisdiction over her case”).

The BIA did not abuse its discretion in denying Padilla-Lopez’s motion to

remand to apply for cancellation of removal, where he did not establish prima facie

eligibility for the relief sought. See Partap v. Holder, 603 F.3d 1173, 1175 (9th

Cir. 2010) (“[B]ecause [claimant] did not tender any evidence showing

‘exceptional and extremely unusual hardship,’ the BIA did not abuse its discretion

in declining to enter a remand order.”).

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

mandate.

PETITION FOR REVIEW DENIED.

3 20-70990