PEREZ SILVA v. BARR (2020)

MEMORANDUM **

Fernando Perez Silva, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for 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 and claims of due process violations, and review for substantial evidence the agency’s factual findings. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

Perez Silva’s contention that the IJ lacked jurisdiction over proceedings is foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).

We lack jurisdiction to review the agency’s discretionary determination that Perez Silva’s conviction constitutes a particularly serious crime that bars withholding of removal. See 8 U.S.C. § 1252(a)(2)(C); Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012) (no jurisdiction to review particularly serious crime determination where there is no assertion of legal or constitutional error and the only challenge is that the IJ incorrectly weighed the facts).

Substantial evidence supports the agency’s denial of CAT relief where Perez Silva did not establish that it was more likely than not that he would be tortured in Mexico. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (speculative possibility of torture does not establish eligibility for CAT relief).

Perez Silva’s due process claim fails because he has not established prejudice from the alleged violation. See Padilla-Martinez, 770 F.3d at 830 (requiring prejudice to prevail on a due process claim).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.