Justininao Lopez-Moreno v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 2019
• Docket: 18-71156
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUSTININAO LOPEZ-MORENO, No. 18-71156

Petitioner, Agency No. A088-760-215

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Justininao Lopez-Moreno, 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

adjustment of status, asylum, withholding of removal, and relief under the

* 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). Convention Against Torture (“CAT”). 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 review de novo claims of

due process violations in immigration proceedings, Jiang v. Holder, 754 F.3d 733,

738 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

The agency did not err in concluding that Lopez-Moreno was ineligible for

adjustment of status because he had not been admitted or paroled into the United

States, did not qualify for the exception under 8 U.S.C. § 1255(i), and did not show

prima facie eligibility for an I-601A provisional unlawful presence waiver. See 8

U.S.C. §§ 1255(a), (i); 1182(a)(9)(C); 8 C.F.R. § 212.7(e) (providing waiver for

inadmissibility for unlawful presence under 8 U.S.C. § 1182(a)(9)(B)(1), but not

inadmissibility for reentry after unlawful presence under 8 U.S.C.

§ 1182(a)(9)(C)).

Substantial evidence supports the agency’s determination that Lopez-

Moreno failed to establish that any harm he experienced or fears in Mexico was or

would be on account of 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

2 18-71156 to a protected ground.”). Contrary to Lopez-Moreno’s argument, Pirir-Boc v.

Holder, 750 F.3d 1077 (9th Cir. 2014) did not address a petitioner’s political

opinion claim. See id. at 1080 n.1. We therefore deny petitioner’s request to

remand. Thus, Lopez-Moreno’s asylum and withholding of removal claims fail.

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

Lopez-Moreno failed to show it is more likely than not that he would be tortured

by or with the consent or acquiescence of the Mexican government. See Zheng v.

Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (claims of possible torture

speculative).

We reject Lopez-Moreno’s contentions that the BIA violated his due process

rights as to his former counsel’s motion to withdraw and as to Lopez-Moreno’s

application for adjustment of status. See Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000) (requiring error to prevail on a due process claim). In addition, we

reject as unsupported by the record Lopez-Moreno’s contentions that the BIA

ignored or summarily rejected his claims.

As to Lopez-Moreno’s contention that the BIA insufficiently explained its

denial of his request for administrative closure, we reject his contention because

the record does not establish that Lopez-Moreno moved the agency to

3 18-71156 administratively close his case or that the BIA rendered a decision on

administrative closure. See id.

We reject Lopez-Moreno’s contention that the agency improperly denied

him a continuance to obtain new counsel, where the record reflects that Lopez-

Moreno did not move for such a continuance, and that the IJ nonetheless provided

a continuance of more than three months following the withdraw of Lopez-

Moreno’s prior counsel. See id.

Finally, we lack jurisdiction to consider Lopez-Moreno’s contentions that

the agency improperly denied him a continuance to apply for adjustment of status

because he failed to raise these contentions to the agency. See Barron v. Ashcroft,

358 F.3d 674, 677-78 (9th Cir. 2004). Similarly, we lack jurisdiction to consider

Lopez-Moreno’s contention regarding whether the IJ improperly allowed his

attorney to withdraw because he failed to raise it to the BIA. Id.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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