Gerardo Hernandez v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERARDO HERNANDEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-70065
Agency No. A090-035-320
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Gerardo Hernandez, a native and citizen of Mexico and a legal permanent
resident, 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 asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
* 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
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 1252. We review de novo questions of law. Ahmed v. Holder, 569 F.3d 1009,
1012 (9th Cir. 2009). We deny in part and dismiss in part the petition for review.
Hernandez does not address the BIA’s determination that he waived any
challenge to the IJ’s findings that he is removable based on his 2014 conviction,
and that his 2014 conviction is an aggravated felony that renders him statutorily
ineligible for asylum. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011)
(issues not raised in an opening brief are waived).
Because Hernandez was found removable due to his aggravated felony
conviction, our jurisdiction to review the particularly serious crime determination
is limited to colorable constitutional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(C)-(D); Pechenkov v. Holder, 705 F.3d 444, 448-49 (9th Cir. 2012).
To the extent Hernandez contends the agency incorrectly concluded his conviction
is a per se particularly serious crime, we reject this contention because the BIA
instead conducted a case-specific analysis in reaching its conclusion. See 8 U.S.C.
§ 1231(b)(3)(B); Delgado v. Holder, 648 F.3d 1095, 1103-05 (9th Cir. 2011). We
lack further jurisdiction over Hernandez’s withholding of removal claim. See
Pechenkov, 705 F.3d at 448-49.
Because the aggravated felony determination is dispositive as to asylum, and
the particularly serious crime determination is dispositive as to withholding of
removal, we do not, and the BIA was not required to, address Hernandez’s

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remaining contentions regarding eligibility for asylum and withholding of removal.
See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies
are not required to decide issues unnecessary to the results they reach).
Hernandez does not address the BIA’s determination that he waived any
challenge to the IJ’s denial of CAT relief. See Rizk, 629 F.3d at 1091 n.3. We
therefore do not reach his remaining unexhausted contentions regarding CAT
relief. See id.; Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (review is
limited to the actual grounds relied upon by the BIA); Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider contentions not
presented in an alien’s administrative proceedings before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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