NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OTONIEL AUGUSTO MARTINEZ- No. 20-70492
VELEZ,
Agency No. A205-150-365
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Otoniel Augusto Martinez-Velez, 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 applications for
cancellation of removal, asylum, withholding of removal, and relief under the
*
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).
Convention Against Torture (“CAT”). 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 review de novo claims
of due process violations in immigration proceedings. Simeonov v. Ashcroft, 371
F.3d 532, 535 (9th Cir. 2004). We dismiss in part and deny in part the petition for
review.
We lack jurisdiction to review the agency’s discretionary determination that
Martinez-Velez did not show exceptional and extremely unusual hardship to a
qualifying relative for purposes of cancellation of removal. See 8 U.S.C.
§ 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
The petition does not raise a colorable legal or constitutional claim over which we
retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Martinez-Rosas v. Gonzales, 424
F.3dat 930.
The record does not compel the conclusion that Martinez-Velez established
changed or extraordinary circumstances to excuse his untimely asylum application.
See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)-(5).
Substantial evidence supports the agency’s determination that Martinez-
Velez failed to establish he suffered harm that rises to the level of persecution. See
Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (persecution is an “extreme
concept that does not include every sort of treatment our society regards as
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offensive.” (internal quotation marks omitted)). Substantial evidence also supports
the agency’s determination that Martinez-Velez failed to establish that the harm he
fears would be on account of a protected ground. See INS v. Elias-Zacarias, 502
U.S. 478, 483 (1992) (an applicant “must provide some evidence of [motive],
direct or circumstantial”); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.
2010) (a petitioner’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, Martinez-Velez’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Martinez-Velez failed to show it is more likely than not he would 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).
As to Martinez-Velez’s asylum, withholding of removal, and CATclaims,
we reject as unsupported by the record his contentions that the agency failed to
consider evidence, erred in its analysis, or otherwise violated his right to due
process.
Martinez-Velez’s contention that the agency violated his right to due process
or otherwise erred in declining to consider a voluntary departure claim fail where
the record demonstrates that he did not request voluntary departure before the IJ.
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See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on
a due process claim).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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