NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTO MORENO-MENDOZA, No. 19-71424
Petitioner, Agency No. A024-491-999
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Alberto Moreno-Mendoza, a native and citizen of Mexico, 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
withholding of removal and relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-
85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.
In his opening brief, Moreno-Mendoza does not contest the BIA’s
determination that he waived challenge to the IJ’s denial of his withholding of
removal claim, 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), and we lack jurisdiction to consider his contentions as to the merits of his
withholding of removal claim, see Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).
Substantial evidence supports the agency’s denial of deferral of removal
under CAT because Moreno-Mendoza failed to show it is more likely than not he
will be tortured by or with the consent or acquiescence of the government if
returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see
also Garcia-Milian v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (concluding
that petitioner did not establish the necessary “state action” for CAT relief). We
reject as unsupported by the record Moreno-Mendoza’s contentions that the agency
erred in its analysis of his claim.
Moreno-Mendoza’s contentions that the immigration court lacked
jurisdiction or that termination is otherwise required under Pereira v. Sessions, 138
2 19-71424
S. Ct. 2105 (2018), are foreclosed by Karingithi v. Whitaker, 913 F.3d 1158 (9th
Cir. 2019) and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020).
As stated in the court’s June 25, 2020 order, the temporary stay of removal
remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 19-71424