FILED
NOT FOR PUBLICATION AUG 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREI IVANOVICH ULESCENCO, No. 12-72806
a.k.a. Andrei Ulescenco,
Agency No. A094-532-189
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2014**
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
Andrei Ivanovich Ulescenco, a native and citizen of Moldova, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from a decision of an immigration judge (“IJ”) denying his applications for
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, Blandino-Medina v. Holder,
712 F.3d 1338, 1348 (9th Cir. 2013), and review de novo questions of law,
Pechenkov v. Holder, 705 F.3d 444, 449 (9th Cir. 2012). We deny in part and
dismiss in part the petition for review.
Substantial evidence supports the agency’s denial of Ulescenco’s application
for CAT protection because Ulescenco failed to demonstrate that he would more
likely than not suffer torture upon his removal to Moldova. See Blandino-Medina,
712 F.3d at 1348 (affirming the denial of CAT protection for a petitioner who “had
not presented evidence that similarly-situated individuals [we]re being tortured by
[government] officials”).
The record does not support Ulescenco’s contention that the BIA failed to
consider the country-conditions evidence in the record. See Larita-Martinez v.
INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000) (“[A]n alien attempting to establish
that the B[IA] . . . fail[ed] to consider relevant evidence must overcome the
presumption that it did review the evidence.”).
Ulescenco’s claim that the IJ violated due process by excluding his late-filed
documents lacks merit. See Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010)
(per curiam) (finding no due process violation, where the petitioner had “a
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reasonable opportunity” to present evidence); see also Taggar v. Holder, 736 F.3d
886, 890 (9th Cir. 2013) (“If an application or document is not filed within the time
set by the Immigration Judge, the opportunity to file that application or document
shall be deemed waived.” (quoting 8 C.F.R. § 1003.31(c))).
Because Ulescenco does not contest the agency’s determination that his
2011 conviction for first-degree burglary under California Penal Code § 459 is for
an aggravated-felony crime of violence that renders him removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii), we lack jurisdiction to review the agency’s discretionary
determination that Ulescenco’s offense is a particularly serious crime that
statutorily bars him from withholding of removal. See Pechenkov, 705 F.3d at 448
(holding that the court lacks jurisdiction under 8 U.S.C. § 1252(a)(2)(C)-(D) to
review a particularly-serious-crime determination where the only challenge is that
the agency “incorrectly assessed the facts”). Ulescenco has failed to raise a
colorable constitutional claim or question of law that would invoke our jurisdiction
under 8 U.S.C. § 1252(a)(2)(D). See Mendez-Castro v. Mukasey, 552 F.3d 975,
978 (9th Cir. 2009) (“To be colorable in this context, the [claim] need not be
substantial, but the claim must have some possible validity.” (citation omitted)).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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