Monica Paz-Tejeda v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2020
• Docket: 19-71219
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MONICA KARINA PAZ-TEJEDA, AKA No. 19-71219 Monica K. Salamanca, Agency No. A087-152-380 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Monica Karina Paz-Tejeda, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal

from an immigration judge’s (“IJ”) decision denying her application for asylum,

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 de novo questions of

law and constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th

Cir. 2005). We review for substantial evidence the agency’s factual findings.

Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We dismiss in part

and deny in part the petition for review.

In the opening brief, Paz-Tejeda does not challenge the agency’s

determination that she is ineligible for asylum because she was convicted of an

aggravated felony. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th

Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are

waived). Thus, we deny the petition for review as to asylum.

Because Paz-Tejeda was found removable due to her conviction for an

aggravated felony, our jurisdiction to review the agency’s particularly serious

crime determination is limited to constitutional claims and questions of law. See 8

U.S.C. § 1252(a)(2)(C)-(D); Pechenkov v. Holder, 705 F.3d 444, 448-49 (9th Cir.

2012). We therefore lack jurisdiction to review Paz-Tejeda’s challenge to the

agency’s discretionary determination that her conviction constitutes a particularly

serious crime that statutorily bars her from withholding of removal. See

Pechenkov, 705 F.3d at 448-49 (no jurisdiction over particularly serious crime

determination where the only challenge is that the agency “incorrectly assessed the

facts”). To the extent Paz-Tejeda contends the IJ applied an incorrect legal

2 19-71219 standard, we lack jurisdiction to consider the issue because she failed to raise it 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, Paz-Tejeda’s

withholding of removal claim fails.

Substantial evidence supports the agency’s denial of deferral of removal

under CAT because Paz-Tejeda failed to show it is more likely than not she 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); see also

Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not establish

the necessary “state action” for CAT relief).

Paz-Tejeda’s motion for a stay of removal (Docket Entry No. 1) is denied as

moot.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

3 19-71219