Rogerio Mendivil-Gutierrez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGERIO MENDIVIL-GUTIERREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72781
Agency No. A208-180-775
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2022**
Phoenix, Arizona
Before: PAEZ, CLIFTON, and WATFORD, Circuit Judges.
Rogerio Mendivil-Gutierrez, a native and citizen of Mexico, petitions for
review of an order by the Board of Immigration Appeals (BIA) denying his
applications for cancellation of removal, asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). We deny in part and dismiss
* 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 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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in part the petition for review.
1. Adverse credibility finding. In his opening brief before this court,
Mendivil-Gutierrez does not challenge the agency’s adverse credibility finding.
Therefore, he has waived any such challenge. See Corro-Barragan v. Holder, 718
F.3d 1174, 1177 n.5 (9th Cir. 2013). In reviewing the agency’s denial of his
claims for relief, we are bound by that determination.
2. Cancellation of removal. Substantial evidence supports the agency’s
determination that Mendivil-Gutierrez is ineligible for cancellation of removal
under 8 U.S.C. § 1229b(b)(1). He cannot show ten years of continuous physical
presence because his expedited removal order in September 2015 broke that
presence. See Juarez-Ramos v. Gonzales, 485 F.3d 509, 511 (9th Cir. 2007).
Mendivil-Gutierrez’s reliance on Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir.
2006), is not persuasive. Unlike a voluntary departure, the record shows that
Mendivil-Gutierrez understood he was to depart the U.S. and that he could not re-
enter for five years. Cf. id. at 619-20 (explaining that a voluntary departure only
breaks physical presence if there is evidence the noncitizen understood they could
not reenter and resume continuous presence). Even assuming that the immigration
official who oversaw his removal did not advise Mendivil-Gutierrez of
cancellation of removal relief, there was no error because he was not potentially
eligible for cancellation of removal at that time. His answers to the official’s

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questions confirmed that he did not have a qualifying relative in 2015, and he did
not marry his U.S. citizen spouse until April 2017. See § 1229b(b)(1)(D).
Mendivil-Gutierrez’s equal protection claim also fails because he has not shown
that the classification between departures that break continuous presence and those
that do not is irrational. See Gonzalez-Medina v. Holder, 641 F.3d 333, 336 (9th
Cir. 2011).
3. Asylum and withholding of removal. Having determined that Mendivil-
Gutierrez was not a credible witness, the agency concluded that he failed to meet
his burden of showing that he was eligible for asylum and withholding of removal.
Substantial evidence supports that determination. To the extent Mendivil-
Gutierrez challenges the IJ’s alternative reasons for denying asylum and
withholding of removal, we lack jurisdiction to review them because the BIA
declined to consider them. See Tekle v. Mukasey, 533 F.3d 1044, 1056 (9th Cir.
2008) (citing I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)); Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010) (“[O]ur review is limited to the actual
grounds relied upon by the BIA.” (citation omitted)).
4. CAT relief. “An adverse credibility determination is not necessarily a
death knell to CAT protection.” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir.
2010). Here, however, the country conditions evidence does not compel the
conclusion that Mendivil-Gutierrez is more likely than not to personally face

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torture upon removal to Mexico. See id. at 1049 (holding that “background
material” on country did not show the petitioner fell within the cases or
information discussed in that evidence); Mukulumbutu v. Barr, 977 F.3d 924, 927-
28 (9th Cir. 2020) (same).
5. Due process. Mendivil-Gutierrez has also not shown a due process
violation. There is no indication that the IJ acted in a biased manner in concluding
he did not show past persecution. See Rivera v. Mukasey, 508 F.3d 1271, 1276
(9th Cir. 2007). Further, we need not address whether the IJ failed to consider all
relevant factors contributing to his wife’s hardship because, in any event, he cannot
show prejudice as he is otherwise ineligible for cancellation of removal. Ibarra-
Flores, 439 F.3d at 620-21.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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