NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS RUBEN COMER GORDILLO, No. 20-73734
Petitioner, Agency No. A205-318-071
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2022**
Pasadena, California
Before: CALLAHAN and VANDYKE, Circuit Judges, and ARTERTON,***
District Judge.
Carlos Ruben Comer Gordillo (Gordillo), a native and citizen of Guatemala,
petitions for review of a Board of Immigration Appeals’ (BIA) order that dismissed
*
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).
***
The Honorable Janet Bond Arterton, United States District Judge for the District
of Connecticut, sitting by designation.
his appeal from an Immigration Judge’s (IJ) decision denying his applications for
cancellation of removal, asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction over the asylum and
withholding claims under 8 U.S.C. § 1252. We dismiss in part and deny in part the
petition for review.
“Where, as here, the BIA cites Burbano and also provides its own review of
the evidence and law, we review both the IJ’s and the BIA’s decisions.” Ali v.
Holder, 637 F.3d 1025, 1028 (9th Cir. 2011) (citation omitted); Cordoba v. Barr,
962 F.3d 479, 481 (9th Cir. 2020).1 In the absence of a colorable legal or
constitutional claim, we lack jurisdiction to review the agency’s discretionary
determination that Gordillo was ineligible for cancellation of removal. 8 U.S.C.
§ 1252(a)(2)(B), (D); see Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.
2003); see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We
review the denial of asylum, withholding of removal, and CAT relief for substantial
evidence. Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). “Under the
substantial evidence standard, administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.”
Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (quotations omitted)
1
“Thus, we refer to the Board and IJ collectively as ‘the agency.’” Medina-Lara v.
Holder, 771 F.3d 1106, 1111 (9th Cir. 2014).
2
(citing 8 U.S.C. § 1252(b)(4)(B)).
As to cancellation of removal, Gordillo relies on Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020) to support his contention that we may exercise jurisdiction
over the agency’s discretionary decision that he failed to establish the requisite
“exceptional and extremely unusual hardship.” But Guerrero-Lasprilla reinforced
that we lack jurisdiction to consider “appeals of factual determinations,” and that is
what Gordillo presents for review. 140 S. Ct. at 1073. Although Gordillo portrays
his disagreement with the agency as a legal claim, his claim ultimately boils down
to nothing more than a disagreement with the agency’s factual determinations
underlying the denial of his claim. Accordingly, we lack jurisdiction to review his
claim. Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001) (“a petitioner
may not create the jurisdiction that Congress chose to remove simply by cloaking an
abuse of discretion argument in constitutional garb”). Gordillo does not otherwise
raise a colorable legal or constitutional claim over which we retain jurisdiction. See
8 U.S.C. § 1252(a)(2)(D). Thus, the petition for review as to cancellation of removal
is dismissed for lack of jurisdiction.
As to asylum and withholding of removal, Gordillo feared that he would face
gang violence on account of his tattoos and status as an individual returning from
the United States. But Gordillo failed to connect his feared harm to any protected
ground, so the agency’s denial of his asylum and withholding claims is supported by
3
substantial evidence.2 See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(“An [applicant’s] desire to be free from harassment by criminals motivated by theft
or random violence by gang members bears no nexus to a protected ground.”). Thus,
the petition for review as to asylum and withholding of removal is denied.
As to CAT protection, the BIA did not err in its determination that Gordillo
waived the claim before the agency, see Alanniz v. Barr, 924 F.3d 1061, 1068–69
(9th Cir. 2019) (finding no error in BIA’s waiver determination), so we lack
jurisdiction to consider it. See Barron, 358 F.3d at 677–78 (holding that courts lack
jurisdiction to review claims not presented to the agency). Thus, the petition for
review as to the CAT claim is dismissed for lack of jurisdiction.
The temporary stay of removal remains in place until issuance of the mandate.
The motion for a stay of removal (ECF No. 1-2) is otherwise denied as moot.
PETITION DISMISSED in part and DENIED in part.
2
Gordillo argues that his particular social group (PSG) includes “Guatemalan
nationals who came to the United States as minors.” But as the BIA found, that
argument was not presented to the IJ, so it is unexhausted and we lack jurisdiction
to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004); see
also Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019).
4