FLORES v. BARR (2019)

MEMORANDUM **

Eduardo Colin Flores, 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 asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the agency’s particularly serious crime determination and review for substantial evidence the denial of CAT relief. Konou v. Holder, 750 F.3d 1120, 1124, 1127 (9th Cir. 2014). We review de novo questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny in part and dismiss in part the petition for review.

Contrary to Flores’s contention, the BIA properly determined that he waived any challenge to the application of the one-year filing deadline for asylum, where he failed to sufficiently raise the issue on appeal. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (petitioner must sufficiently put the BIA on notice as to specific issues so that the BIA has an opportunity to pass on those issues).

The agency did not err or abuse its discretion in determining Flores’s conviction is a particularly serious crime that renders him ineligible for withholding of removal, where the agency relied on the appropriate factors and proper evidence in reaching its conclusion. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (the court’s review of the agency’s discretionary particularly serious crime determination is limited to ensuring the agency relied on the appropriate factors and proper evidence).

Because the particularly serious crime determination is dispositive, we do not, and the BIA was not required to, address Flores’s other contentions regarding eligibility for withholding of removal. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

Substantial evidence supports the agency’s denial of CAT relief, where Flores did not show it is more likely than not he would be tortured by or with the acquiescence of the Mexican government. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014);.

Flores’s contention that the agency violated due process by improperly weighing evidence fails for lack of error and prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due process claim); Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (holding the BIA adequately considered evidence and sufficiently announced its decision).

We lack jurisdiction to consider Flores’s unexhausted contention that the IJ erred in requiring corroborative evidence. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not presented in an alien’s administrative proceedings before the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.