Jose Rodriguez-Garcia v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE RODRIGUEZ-GARCIA, AKA Jose No. 15-73106
Garcia Rodriguez,
Agency No. A088-241-860
Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 11, 2017**

Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.

Jose Rodriguez-Garcia, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying cancellation of removal, asylum,

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 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).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence the agency’s determination of continuous physical presence, Ibarra-

Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006). We deny the petition for

review.

Substantial evidence supports the agency’s determination that Rodriguez-

Garcia was outside of the United States for a period of more than 90 days during

the statutory period and thus failed to establish the requisite continuous physical

presence. See 8 U.S.C. § 1229b(b)(1)(A), (d)(2) (a departure in excess of 90 days

breaks continuous physical presence). Even assuming equitable estoppel could

apply, he has not shown affirmative misconduct by United States immigration

officials. See Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1165 (9th Cir. 2005)

(“The government in immigration cases may be subject to equitable estoppel if it

has engaged in affirmative misconduct.”).

Substantial evidence supports the agency’s determination that Rodriguez-

Garcia failed to establish that he could not reasonably relocate within Mexico. See

8 C.F.R. § 1208.16(b)(2)-(3).

Rodriguez-Garcia has waived any challenge to the agency’s denial of CAT

relief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not

raised in an opening brief are waived).

In light of this disposition, we do not reach Rodriguez-Garcia’s contentions

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regarding membership in a particular social group.

PETITION FOR REVIEW DENIED.

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