Candido Pena Ramirez v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CANDIDO PENA RAMIREZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-72682
Agency No. A206-356-901
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Candido Pena Ramirez, 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 application for withholding of
removal and relief under the Convention Against Torture (“CAT”). Our
* 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).
FILED
MAY 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
agency’s particularly serious crime determination and review for substantial
evidence the denial of CAT relief. Konou v. Holder, 750 F.3d 1120, 1124, 1127
(9th Cir. 2014). We deny in part and dismiss in part the petition for review.
As to the agency’s particularly serious crime determination, the court’s
review is limited to whether the agency relied on the appropriate factors and proper
evidence. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)
(the court may not reweigh the evidence and reach its own conclusion in review of
the agency’s particularly serious crime determination). The agency did not abuse
its discretion in determining that Ramirez’s conviction under Cal. Penal Code
§ 288(a) is a particularly serious crime that rendered him ineligible for withholding
of removal, where the agency cited to and applied the correct legal analysis to
appropriate record evidence. See 8 U.S.C. § 1231(b)(3)(B)(ii) (an applicant
convicted of a particularly serious crime is ineligible for withholding of removal);
Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012) (no abuse of discretion in a
particularly serious crime determination where the agency reviewed the conviction
and related records); see also Konou, 750 F.3d at 1126-27 (listing factors to
consider in determining whether a crime is particularly serious). We do not
address Ramirez’s contentions as to nexus and membership in particular social
groups because the BIA did not deny relief on these grounds. See Santiago-

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Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision
of the BIA, we consider only the grounds relied upon by that agency.”) (citation
and internal quotation marks omitted). Thus, Ramirez’s withholding of removal
claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Ramirez failed to establish it is more likely than not that he would be tortured by or
with the consent or acquiescence of the government of Mexico. See Garcia-Milian
v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (evidence did not compel
conclusion that petitioner established the state action necessary for CAT relief).
Finally, we lack jurisdiction to consider Ramirez’s unexhausted contention
that the IJ improperly denied voluntary departure. See Barron v. Ashcroft, 358
F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not
presented to the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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