Gregorio Valenzuela Torres v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GREGORIO VALENZUELA TORRES, No. 21-70094

Petitioner, Agency No. A072-900-211

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

Respondent.

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

Submitted April 11, 2022**

Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.

Gregorio Valenzuela Torres, a native and citizen of Mexico, petitions pro se

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

* 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). (“CAT”), and adjustment of status. Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review for substantial evidence the agency’s factual findings, Zehatye

v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and we review de novo

claims of due process violations in immigration proceedings, Simeonov v. Ashcroft,

371 F.3d 532, 535 (9th Cir. 2004). We deny in part and dismiss in part the petition

for review.

In his opening brief, Valenzuela Torres does not contend that the BIA erred

in finding he waived any challenge to the IJ’s dispositive determinations that his

conviction under California Penal Code § 288(a) was an aggravated felony and a

particularly serious crime that renders him ineligible for asylum and withholding of

removal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013)

(concluding petitioner waived challenge to issue not specifically raised and argued

in his opening brief). Valenzuela Torres’s challenges to the validity of his

conviction are not properly before this court. See Ramirez-Villalpando v. Holder,

645 F.3d 1035, 1041 (9th Cir. 2011) (“A petitioner may not collaterally attack his

state court conviction on a petition for review of a BIA decision.”). Thus,

Valenzuela Torres’s asylum and withholding of removal claims fail.

In light of this disposition, we do not reach Valenzuela Torres’s contentions

as to the merits of his asylum and withholding of removal claims. See Simeonov,

2 21-70094 371 F.3d at 538 (stating that courts and agencies are not required to decide issues

unnecessary to the results they reach).

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

Valenzuela Torres failed to show it is more likely than not he would 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).

We lack jurisdiction to review the agency’s discretionary denial of

adjustment of status because Valenzuela Torres does not raise a colorable

constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(B), (D);

Monroy v. Lynch, 821 F.3d 1175, 1177-78 (9th Cir. 2016) (stating that

disagreement with the agency’s weighing of equities does not raise a colorable

question of law).

The BIA did not err in concluding that Valenzuela Torres failed to establish

the IJ violated his right to due process by ignoring evidence or exhibiting bias. See

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to

prevail on a due process claim).

PETITION FOR REVIEW DENIED, in part; DISMISSED, in part.

3 21-70094