NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA MARIA GONZALEZ, Nos. 17-71358
17-73148
Petitioner,
Agency No. A070-969-666
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 7, 2020**
Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges.
Ana Maria Gonzalez, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her application for asylum,
withholding of removal, relief under the Convention Against Torture (“CAT”), and
cancellation of removal (petition No. 17-71358), and the BIA’s order denying her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion to reconsider its prior opinion and motion to reopen removal proceedings
based on ineffective assistance of counsel (petition No. 17-73148). Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,
Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that
deference is owed to the BIA’s interpretation of the governing statutes and
regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review
for substantial evidence the agency’s factual findings. Garcia-Milian v. Holder,
755 F.3d 1026, 1031 (9th Cir. 2014). We review for abuse of discretion the denial
of a motion to reopen or reconsider. Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir.
2015). We deny the petition for review in No. 17-71358, and we deny in part and
dismiss in part the petition for review in No. 17-73148.
As to petition No. 17-71358, the agency did not err in concluding that, even
assuming that Gonzalez could establish past persecution, Gonzalez’s resignation
more than twenty years ago from the National Police before she left Guatemala
constituted a fundamental change in circumstances sufficient to rebut any well-
founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1)(i)(A); Gonzalez-
Hernandez v. Ashcroft, 336 F.3d 995, 997–99 (9th Cir. 2003). In addition,
substantial evidence supports the agency’s determination that Gonzalez failed to
establish that she was at risk of persecution because of her status as a former police
officer. Cf. Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir. 2000). Thus,
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Gonzalez’s asylum claim fails. And, because she has failed to establish eligibility
for asylum, Gonzalez necessarily fails to establish eligibility for withholding of
removal. See id. at 1031.
Substantial evidence supports the agency’s denial of CAT relief because
Gonzalez failed to show that it is more likely than not she will be tortured by or
with the consent or acquiescence of the government if returned to Guatemala. See
Garcia-Milian, 755 F.3d at 1033–35. We reject Gonzalez’s contentions that the
agency failed to consider the evidence of the beating she suffered before resigning
from the National Police or otherwise erred in its legal analysis. See Najmabadi v.
Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency need not write an exegesis on
every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)
(petitioner did not overcome the presumption that the BIA reviewed the record).
As to petition No. 17-73148, the BIA did not abuse its discretion in finding
that Gonzalez failed to substantially comply with the threshold requirements for
establishing ineffective assistance of counsel set forth in Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988). See Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004)
(explaining that, under ordinary circumstances, the BIA does not abuse its
discretion when it denies a motion to reopen based on alleged ineffective
assistance of counsel where the petitioner fails to meet the requirements of
Lozada). And although “we have not hesitated to address ineffective assistance of
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counsel claims even when an alien fails to comply strictly with Lozada,” Ray v.
Gonzales, 439 F.3d 582, 588 (9th Cir. 2006), the record here does not “show[] a
clear and obvious case of ineffective assistance,” Rodriguez-Lariz v. INS, 282 F.3d
1218, 1227 (9th Cir. 2002).
To the extent that Gonzalez is challenging the BIA’s denial of her motion to
reconsider, the BIA did not abuse its discretion because her motion failed to
identify any error of fact or law in the prior order. See 8 C.F.R. § 1003.2(b)(1).
Gonzalez’s contention that the agency lacked jurisdiction because the initial
notice to appear omitted the date and time of her hearing is foreclosed by
Karingithi v. Whitaker, 913 F.3d 1158, 1160–62 (9th Cir. 2019).
Gonzalez fails to challenge, and therefore waives our review of, the BIA’s
denial of her request for administrative closure. See Lopez-Vasquez v. Holder, 706
F.3d 1072, 1079–80 (9th Cir. 2013) (issues not specifically raised and argued in a
party’s opening brief are waived).
We lack jurisdiction to consider Gonzalez’s contentions that the BIA had a
duty to review sua sponte the IJ’s denial of her request for cancellation of removal
or to advise her to apply for adjustment of status, as those contentions were not
raised to the agency. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004)
(court lacks jurisdiction to review claims not presented to the agency).
No. 17-71358: PETITION FOR REVIEW DENIED.
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No. 17-73148: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
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