Jose Lujan-Lujan v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2018
• Docket: 17-70736
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ANTONIO LUJAN-LUJAN, No. 17-70736

Petitioner, Agency No. A200-188-051

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

Jose Antonio Lujan-Lujan, 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 application for

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

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings. Avendano-Hernandez v. Lynch, 800 F.3d

1072, 1078 (9th Cir. 2015). We dismiss in part and deny in part the petition for

review.

We do not consider the factual allegations Lujan-Lujan raises for the first

time on appeal. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (the

court’s review is limited to the administrative record).

We lack jurisdiction to consider Lujan-Lujan’s contention as to humanitarian

asylum because he never raised this claim to the agency. See Sola v. Holder, 720

F.3d 1134, 1135 (9th Cir. 2013) (court lacks jurisdiction to review issues or claims

not presented to the agency). We also lack jurisdiction to consider Lujan-Lujan’s

challenges to the IJ’s particularly serious crime determination and withholding of

removal because, as the BIA found, he failed to challenge these findings on appeal.

See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must

exhaust issues or claims in administrative proceedings below).

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

Lujan-Lujan failed to show it is more likely than not that he will be tortured upon

his return to Mexico, either by the Mexican government or with its consent or

2 17-70736 acquiescence. See Avendano-Hernandez, 800 F.3d at 1078-79 (9th Cir. 2015)

(explaining standard for deferral of removal under CAT); Zheng v. Holder, 644

F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

3 17-70736