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United States Court of Appeals, Ninth Circuit.

Eliodoro Sanchez SARABIA, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 19-70537

Decided: January 28, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Douglas Jalaie, Esquire, Attorney, The Law Office of Douglas Jalaie, Los Angeles, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Suzanne N. Nardone, Esquire, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent


Eliodoro Sanchez Sarabia, 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 application 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 we review for substantial evidence the agency's factual findings. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We dismiss in part and deny in part the petition for review.

Because Sarabia was found removable due to his conviction for an aggravated felony, we lack jurisdiction to review the agency's discretionary determination that Sarabia's conviction constitutes a particularly serious crime that bars Sarabia from withholding of removal. See 8 U.S.C. § 1252(a)(2)(C); Pechenkov v. Holder, 705 F.3d 444, 448-49 (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). Thus, Sarabia's withholding of removal claim fails.

Substantial evidence supports the agency's denial of deferral of removal under CAT because Sarabia 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 Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (speculative possibility of torture does not establish eligibility for CAT relief).


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