Juan Castaneda-Martin v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 28, 2021
• Docket: 20-72027
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN FRANCISCO CASTANEDA- No. 20-72027 MARTIN, Agency No. A200-567-138 Petitioner,

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.

Juan Francisco Castaneda-Martin, a native and citizen of Guatemala,

petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order

denying his motion to terminate proceedings and dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his applications for asylum,

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

cancellation of removal. 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). We review for abuse of discretion the

BIA’s denial of a motion to terminate. Dominguez v. Barr, 975 F.3d 725, 734 (9th

Cir. 2020). We deny in part and dismiss in part the petition for review.

In his opening brief, Castaneda-Martin does not raise, and therefore waives,

challenge to the BIA’s determination that he waived his challenge to the IJ’s

dispositive determinations that his asylum application was untimely and that he

was ineligible for CAT relief. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-

80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s opening

brief are waived). We lack jurisdiction to consider Castaneda-Martin’s contentions

regarding the merits his CAT claim because he did not raise them to the BIA. See

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction

to review claims not presented to the agency). Thus, we deny the petition for

review as to Castaneda-Martin’s asylum and CAT claims.

As to withholding of removal, in his opening brief, Castaneda-Martin does

not raise, and therefore waives, challenge to the agency’s determination that he did

not meet his burden to establish past persecution. See Lopez-Vasquez, 706 F.3d at

1079-80. Substantial evidence supports the agency’s determination that

2 20-72027 Castaneda-Martin failed to demonstrate a nexus between the harm he fears in

Guatemala and a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th

Cir. 2010) (an applicant’s “desire to be free from harassment by criminals

motivated by theft or random violence by gang members bears no nexus to a

protected ground”). Thus, Castaneda-Martin’s withholding of removal claim fails.

We lack jurisdiction to review the agency’s denial of cancellation of removal

because Castaneda-Martin raises no colorable legal or constitutional claim. See

Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (court’s

jurisdiction to review challenges to the agency’s discretionary determination is

limited to colorable constitutional claims or questions of law).

The agency did not abuse its discretion in denying Castaneda-Martin’s

motion to terminate proceedings where his challenge to the agency’s jurisdiction

under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105 (2018), is foreclosed by

Aguilar-Fermin v. Barr, 958 F.3d 887, 895 (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 [his] case”).

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

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 20-72027