Raul Magana Manzo v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2021
• Docket: 16-71384
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAUL MAGANA MANZO, AKA Pule No. 16-71384 Moniker, Agency No. A095-660-869 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 17, 2021**

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.

Raul Magana Manzo, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for deferral of removal

under the Convention Against Torture (“CAT”). Our jurisdiction is governed by

* 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). 8 U.S.C. § 1252. See Nasrallah v. Barr, 140 S. Ct. 1683, 1694 (2020) (“[8 U.S.C.]

§§ 1252 (a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual

challenges to a CAT order.”). We review for substantial evidence the agency’s

factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).

We deny in part and dismiss in part the petition for review.

In his opening brief, Magana Manzo does not contend that the BIA erred in

finding he waived any challenge to the IJ’s determinations as to his removability,

or that his conviction under Cal. Health & Safety Code § 11351(a) rendered him

ineligible for cancellation of removal, asylum, and withholding of removal. See

Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (concluding

petitioner waived challenge to issue not specifically raised and argued in his

opening brief).

Substantial evidence supports the BIA’s denial of deferral of removal under

CAT because Magana Manzo failed to show it is more likely than not he would 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).

To the extent Magana Manzo contends the IJ applied an incorrect legal

standard in the analysis of acquiescence under CAT, we lack jurisdiction to

2 16-71384 consider the contention. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.

2004) (concluding the court lacks jurisdiction to review claims not presented to the

agency). We reject as unsupported by the record Magana Manzo’s additional

contentions that the agency misapplied the law or otherwise erred in its analysis of

his deferral of removal under CAT claim.

Magana Manzo’s contention that the agency did not consider evidence fails.

See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“[BIA] does not have

to write an exegesis on every contention”) (citation and internal quotation marks

omitted); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (concluding

petitioner did not overcome the presumption that the BIA reviewed the record).

As stated in the court’s August 3, 2016 order, the stay of removal remains in

place until the issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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