Vasquez Vasquez v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LORENZO VASQUEZ VASQUEZ, No. 22-991 Agency No. Petitioner, A206-547-375 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 16, 2023** Portland, Oregon

Before: TALLMAN and RAWLINSON, Circuit Judges, and RAKOFF, District Judge.***

Petitioner Lorenzo Vasquez Vasquez seeks reversal of the final order of

the Board of Immigration Appeals (BIA) dismissing his appeal and affirming

the decision of the Immigration Judge (IJ) denying his application for

* 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). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. cancellation of removal, asylum, withholding of removal, and protection under

the Convention Against Torture (CAT). We have jurisdiction pursuant to 8

U.S.C. § 1252. Because the parties are familiar with the facts of this appeal, we

do not recite them here. We dismiss in part and deny in part the petition.

“Where the BIA conducts its own review of the evidence and law, rather

than adopting the IJ’s decision, our review is limited to the BIA’s decision,

except to the extent the IJ’s opinion is expressly adopted.” Rodriguez v. Holder,

683 F.3d 1164, 1169 (9th Cir. 2012) (cleaned up). We review factual findings

related to eligibility for asylum, withholding of removal, and CAT for

substantial evidence. 8 U.S.C. § 1252(b)(4)(B); Ruiz-Colmenares v. Garland,

25 F.4th 742, 748 (9th Cir. 2022) (CAT protection); Sharma v. Garland, 9 F.4th

1052, 1060 (9th Cir. 2021) (asylum and withholding of removal).

1. To be eligible for cancellation of removal, a petitioner must show in

part that they are a person of good moral character during the ten years

immediately preceding the application. 8 U.S.C. § 1229b(b)(1)(A)–(D).

Petitioner urges this court to assert jurisdiction over the IJ’s finding that

Petitioner lacks good moral character and is therefore ineligible for cancellation

of removal. However, 8 U.S.C. § 1252(a)(2)(B)(i) precludes our jurisdiction

over discretionary moral character determinations under the “catchall” provision

of 8 U.S.C. § 1101(f). And on appeal Petitioner fails to raise a colorable legal

or constitutional question. 8 U.S.C. § 1252(a)(2)(D); see Martinez-Rosas v.

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

2 22-991 2. To be eligible for asylum, a petitioner must either file an application

within one year of arrival or show that the petitioner is eligible for an exception

to the deadline. 8 U.S.C. § 1158(a)(2)(B), (D). It is undisputed that Petitioner

entered the United States in 2000 and did not apply for asylum until 2015.

Before the agency, he unavailingly argued he was eligible for an exception. In

his opening brief, Petitioner does not challenge the agency’s determination that

he failed to timely apply for asylum and focuses instead on his risk of

persecution. Because Petitioner chose not to address the agency’s

determination that his asylum application is time barred, he has waived the issue

on appeal. See Fed. R. App. P. 28(a)(8)(A) (requiring opening briefs to contain

all arguments).

We also find that substantial evidence supported the BIA’s determination

that Petitioner failed to establish his eligibility for withholding of removal.

Petitioner failed to adduce evidence of past persecution and the BIA

appropriately found that evidence that other members of Petitioner’s family who

also owned land continued to live in Mexico unharmed undermined Petitioner’s

contention landowners in his hometown and of his ethnic background would

likely be persecuted. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.

2006) (noting that “[t]o qualify for withholding of removal, an alien must

demonstrate that it is more likely than not that he would be subject to

persecution on one of the specified grounds”).

3. To be eligible for CAT protection, a petitioner must show that “it is

3 22-991 more likely than not that he or she would be tortured if removed to the proposed

country of removal.” 8 C.F.R. § 1208.16(c)(2). “The same ‘more likely than

not’ standard applies to CAT protection as it does to withholding of removal;

however, for CAT protection, the harm feared must meet the definition of

torture.” Sharma 9 F.4th at 1067 (quoting Tamang v. Holder, 598 F.3d 1083,

1095 (9th Cir. 2010)). Petitioner fails to demonstrate that the harm he fears

meets the definition of torture or that he would be tortured if removed to

Mexico. Instead, he points generally to country conditions reports showing

conditions in Mexico have deteriorated. Accordingly, his CAT claim fails.

PETITION DISMISSED in part and DENIED in part.

4 22-991