Gerardo Ortega-Hernandez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GERARDO ORTEGA-HERNANDEZ, No. 20-72272 Petitioner, Agency No. A206-191-543 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 8, 2022 Seattle, Washington Before: GILMAN,** IKUTA, and MILLER, Circuit Judges. Gerardo Ortega-Hernandez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals affirming an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Board also denied * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Ortega-Hernandez’s motion to remand his case to the immigration judge so that he could apply for cancellation of removal under 8 U.S.C. § 1229b. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part and dismiss it in part. We review the agency’s factual findings, including adverse credibility determinations, for substantial evidence. Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). We review the agency’s legal determinations de novo. B.R. v. Garland, 26 F.4th 827, 835 (9th Cir. 2022). 1. The Board determined that Ortega-Hernandez was ineligible for asylum because his claim was untimely. He does not seek review of that determination. As to the claim for withholding of removal, substantial evidence supports the Board’s conclusion that Ortega-Hernandez made inconsistent statements and that his testimony was not credible. The Board—and the immigration judge, whose decision the Board adopted—identified numerous inconsistencies in Ortega- Hernandez’s story regarding the timing of the threats he received, his return trips to Mexico, and his discussion of the police chief’s murder. Without credible testimony, Ortega-Hernandez did not satisfy his burden of proof for withholding of removal. We dismiss Ortega-Hernandez’s challenge to the denial of CAT relief. Ortega-Hernandez did not raise his CAT claim before the Board. Because he failed 2 to exhaust that claim before the agency, we lack jurisdiction to consider it. Vasquez-Rodriguez v. Garland, 7 F.4th 888, 894 (9th Cir. 2021). 2. We reject Ortega-Hernandez’s challenges to the Board’s denial of his motion to remand. Under 8 U.S.C. § 1229b(b), the Attorney General may cancel the removal of certain aliens and adjust their status to that of lawful permanent residents. In 8 U.S.C. § 1252(a)(2)(B), Congress specified that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under” various enumerated statutory provisions, including section 1229b, which permits cancellation of removal. In Patel v. Garland, the Supreme Court held that the statute’s jurisdiction-stripping provision “encompasses any and all decisions relating to the granting or denying of discretionary relief.” 142 S. Ct. 1614, 1621 (2022) (internal …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals