Jose Barboza-Cortez v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE GUADALUPE BARBOZA-CORTEZ, No. 19-70451

Petitioner, Agency No. A096-387-209

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

Respondent.

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

Submitted January 18, 2023**

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

Jose Guadalupe Barboza-Cortez, 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, and protection under the Convention Against

* 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). Torture (“CAT”), and denying his request for voluntary departure. We have

jurisdiction under 8 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 deny in part and dismiss in part the petition for review.

Substantial evidence supports the agency’s determination that Barboza-

Cortez did not establish that the government of Mexico is unable or unwilling to

control the agents of any feared persecution. See Castro-Perez v. Gonzales, 409

F.3d 1069, 1072 (9th Cir. 2005) (record did not compel a finding that the

government was unwilling or unable to control the feared harm). Thus, Barboza-

Cortez’s asylum and withholding of removal claims fail.

Substantial evidence also supports the agency’s denial of CAT protection

because Barboza-Cortez 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); Wakkary v. Holder, 558

F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).

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

departure. See 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Garland, 142 S. Ct. 1614,

1622-23 (2022) (where the agency denies a form of relief listed in 8 U.S.C.

§ 1252(a)(2)(B)(i), federal courts have jurisdiction to review constitutional claims

and questions of law, but not factual findings and discretionary decisions).

2 Barboza-Cortez does not raise a colorable legal or constitutional claim over which

we retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Corro-Barragan v. Holder,

718 F.3d 1174, 1177 (9th Cir. 2013). To the extent Barboza-Cortez challenges the

BIA’s denial of the motion to remand, the BIA did not abuse its discretion in

denying the motion where Barboza-Cortez failed to show prejudice. See Vargas-

Hernandez v. Gonzales, 497 F.3d 919, 924-25 (9th Cir. 2007) (no prejudice where

petitioner could not show the IJ would have reached a different result regarding

discretionary relief).

We do not consider the materials Barboza-Cortez references in his opening

brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,

963-64 (9th Cir. 1996) (en banc).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.