NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR PERIL MENDOZA, AKA Pelon No. 14-72857
Mendoza,
Agency No. A205-719-894
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2020**
Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.
Cesar Peril 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 applications for cancellation of
*
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).
removal, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We dismiss in part and deny in part his petition.
Because the BIA did not reach the issue, we need not consider Mendoza’s
arguments that he demonstrated the requisite good moral character for cancellation
of removal notwithstanding a prior California state conviction. See Andia v.
Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). We also lack
jurisdiction to consider Mendoza’s arguments regarding the agency’s determination
that he failed to show exceptional and extremely unusual hardship to a qualifying
family member. See Arteaga-De Alvarez v. Holder, 704 F.3d 730, 735 (9th Cir.
2012). Although he contends that the BIA incorrectly found that any error in the
IJ’s analysis regarding his stepson did not result in prejudice, Mendoza has not made
out a colorable constitutional claim necessary to invoke our jurisdiction. See id. at
736.
Mendoza next contends that the record compels the finding that he would be
subjected to persecution in Guatemala on account of his membership in a particular
social group consisting of men who have taken concrete steps to oppose gang
membership and authority. However, he failed to raise this particular social group
before the agency. Because the claim is unexhausted, we lack jurisdiction to review
it. See Ahir v. Mukasey, 527 F.3d 912, 917–18 (9th Cir. 2008). Mendoza’s opening
brief does not challenge the agency’s determination that his other proposed social
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groups were not cognizable. 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).
Finally, Mendoza contends that the BIA erred by concluding he failed to
establish that he is eligible for CAT protection. We review this contention under the
“highly deferential” substantial evidence standard. See Singh v. Holder, 753 F.3d
826, 830 (9th Cir. 2014). The record does not compel the conclusion that Mendoza
will more likely than not be tortured if returned to Guatemala. See Robleto-Pastora
v. Holder, 591 F.3d 1051, 1058 (9th Cir. 2010). Thus, substantial evidence supports
the agency’s determination. See id.
PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.
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