QUIROZ MAYA v. BARR (2019)

MEMORANDUM **

Reynaldo Quiroz-Maya, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We review for substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). We dismiss in part and deny in part the petition for review.

To the extent Quiroz-Maya challenges the agency’s case-specific particularly serious crime determination, we lack jurisdiction to consider this unexhausted contention. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not presented in an alien’s administrative proceedings before the BIA.”). For the same reason, we lack jurisdiction to consider his unexhausted contention that his conviction under California Penal Code § 288(a) is not a “crime of violence” as defined in 18 U.S.C. § 16(a). Ibid. The Supreme Court’s intervening decision in Sessions v. Dimaya, ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), which held the definition of “crime of violence” in 18 U.S.C. § 16(b) is impermissibly vague, is inapposite here, where the agency did not apply 18 U.S.C. § 16(b) in its crime of violence analysis.

Substantial evidence supports the agency’s denial of CAT relief, where Quiroz-Maya failed to show it is more likely than not he would be tortured by or with the acquiescence of a government official in Mexico. See 8 C.F.R. § 1208.18(a)(1).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.