Francisco Padilla-Lopez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO PADILLA-LOPEZ, No. 20-70990

Petitioner, Agency No. A096-221-106

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 14, 2021** Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Francisco Padilla-Lopez, 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 relief under the Convention Against Torture (“CAT”) and denying his motion to remand. We have jurisdiction under 8

* 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).

U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We review for abuse of discretion the BIA’s denial of a motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny the petition for review.

Substantial evidence supports the agency’s denial of CAT relief because Padilla-Lopez 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 Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (“Petitioners’ generalized evidence of violence and crime in Mexico is not particular to Petitioners and is insufficient” to establish eligibility for CAT relief); Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).

The BIA did not err in concluding the IJ did not violate Padilla-Lopez’s right to due process by denying his request for a continuance. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner must demonstrate both a violation of rights and prejudice.”).

Padilla-Lopez’s contention that the immigration court lacked jurisdiction over his proceedings is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“the lack of time, date, and place in the NTA sent to [petitioner] did not deprive the immigration court of jurisdiction over her case”).

The BIA did not abuse its discretion in denying Padilla-Lopez’s motion to remand to apply for cancellation of removal, where he did not establish prima facie eligibility for the relief sought. See Partap v. Holder, 603 F.3d 1173, 1175 (9th Cir. 2010) (“[B]ecause [claimant] did not tender any evidence showing ‘exceptional and extremely unusual hardship,’ the BIA did not abuse its discretion in declining to enter a remand order.”).

The temporary stay of removal remains in place until the issuance of the mandate.

PETITION FOR REVIEW DENIED.

Footnotes

[2] 20-70990

[3] 20-70990