FILED
NOT FOR PUBLICATION FEB 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTEBAN MEJIA MENDOZA, No. 12-72559
Petitioner, Agency No. A088-223-110
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Esteban Mejia Mendoza, a native and citizen of Guatemala, 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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, Shrestha v. Holder, 590 F.3d
1034, 1039 (9th Cir. 2010), and review de novo claims of due process violations in
immigration proceedings, Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir.
2000). We dismiss in part and deny in part the petition for review.
Among other things, the IJ found Mejia Mendoza not credible and denied his
claims on that basis. As noted by the BIA, Mejia Mendoza did not challenge the
IJ’s adverse credibility determination, and thus the BIA declined to address it
further. We lack jurisdiction to review Mejia-Mendoza’s challenges to the IJ’s
dispositive credibility determination. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004) (no jurisdiction over claims not presented below). Thus, we
dismiss the petition as to Mejia Mendoza’s asylum and withholding of removal
claims.
Mejia Mendoza’s CAT claim fails because it is based on the same evidence
the agency found not credible, and he does not point to any other evidence in the
record that compels the finding that it is more likely than not he would be tortured
by or with the acquiescence of the government if returned to Guatemala. See
Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir. 2003). We reject Mejia
Mendoza’s claim that the BIA failed to consider all of the evidence with regard to
2 12-72559
his CAT claim. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring
error to prevail on due process challenge); Larita-Martinez, 220 F.3d at 1095-96
(“an alien attempting to establish that the Board violated his right to due process by
failing to consider relevant evidence must overcome the presumption that it did
review the evidence”); cf. Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011)
(“failing to mention highly probative or potentially dispositive evidence” warrants
an inference that the evidence was not considered). Thus, we deny the petition as
to his CAT claim.
We lack jurisdiction to review Mejia Mendoza’s contentions regarding
humanitarian asylum and membership in a disfavored group, his claim that the IJ
failed to consider all of the evidence with regard to CAT relief, and his claim that
the agency failed to consider his aggregate risk of torture because he failed to
exhaust these issues. See Barron, 358 F.3d at 678.
Finally, we lack authority to reinstate voluntary departure. See Garcia v.
Ashcroft, 368 F.3d 1157, 1159 (9th Cir. 2004). We do not consider the new
evidence Mejia Mendoza submitted because our review is limited to the
administrative record before the BIA. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.
1996) (en banc).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 12-72559