NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 30 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIPE LOPEZ SANTANA, No. 20-70290
Petitioner, Agency No. A206-403-207
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 28, 2021**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and HUCK,*** District Judge.
Felipe Lopez Santana seeks review of the Board of Immigration Appeals’
(“BIA”) dismissal of his appeal of an immigration judge’s (“IJ”) denial of his
*
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 Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
applications for asylum and withholding of removal.1 We lack jurisdiction to
review the BIA’s extraordinary-circumstances determination, and we dismiss the
petition as to that issue. We review the denial of withholding of removal for
substantial evidence, and “we must uphold the agency determination unless the
evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019). We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petition as to that issue.
Lopez Santana asserts that he has established extraordinary circumstances to
avoid the one-year time bar for filing his asylum application. 8 U.S.C.
§ 1158(a)(2)(D). He argues that the BIA did not credit the extent of the
psychological trauma that he experienced. Lopez Santana challenges factual
findings, and we lack jurisdiction to review the BIA’s extraordinary-circumstances
determination to the extent it is founded on a factual dispute. See Gasparyan v.
Holder, 707 F.3d 1130, 1134 (9th Cir. 2013); 8 U.S.C. §§ 1158(a)(3),
1252(a)(2)(D). We therefore dismiss for lack of jurisdiction the portion of Lopez
Santana’s petition challenging the merits of the BIA’s extraordinary-circumstances
determination.
Substantial evidence supports the BIA’s conclusion that Lopez Santana did
1
To the extent that Lopez Santana seeks to challenge the IJ’s denial of relief under
the Convention Against Torture (“CAT”), he fails to address the BIA’s
determination as to waiver, so we do not address the merits of his CAT claim.
2
not establish past persecution. The record supports the BIA’s conclusion that the
offensive slurs directed at Lopez Santana by his school-aged peers did not rise to
the level of past persecution. See Wakkary v. Holder, 558 F.3d 1049, 1059 (9th
Cir. 2009) (“Mere discrimination, by itself, is not the same as persecution.”
(alteration and internal quotation marks omitted)). With respect to his rape, Lopez
Santana challenges the IJ’s finding that he had not shown that the government was
unable or unwilling to protect him, but the BIA did not rest on that finding. Lopez
Santana does not challenge the finding that his rape lacked a nexus to a protected
ground, so the BIA’s conclusion that he did not establish past persecution rests on
substantial evidence. See Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir.
2017) (explaining that to qualify for withholding of removal, persecution must be
“because of” a protected ground (quoting 8 U.S.C. § 1231(b)(3)(A))).
Substantial evidence supports the BIA’s conclusion that Lopez Santana has
not shown a clear probability of future persecution. 8 U.S.C. § 1231(b)(3)(A); see
Wakkary, 558 F.3d at 1060 (describing the standard). Lopez Santana has lived
safely in Mexico City, and the country condition evidence does not compel the
conclusion that it is more likely than not that Lopez Santana will be subject to
persecution in Mexico.
DISMISSED IN PART and DENIED IN PART.
3