Jimenez-Corona v. Garland

• Decision Date: 17 April 2023
• Docket Number: 21-38
• Parties: Rocio Jimenez-Corona, Petitioner, v. Merrick B. Garland, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

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Rocio Jimenez-Corona, Petitioner, v. Merrick B. Garland, U.S. Attorney General, Respondent.

No. 21-38

United States Court of Appeals, Ninth Circuit

April 17, 2023

NOT FOR PUBLICATION

Submitted April 13, 2023 ^[**] Seattle, Washington

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-299-828

Before: McKEOWN, BYBEE, and FORREST, Circuit Judges.

MEMORANDUM ^[*]

Rocio Jimenez-Corona, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals' ("BIA") decision dismissing her appeal of the Immigration Judge's ("IJ") denial of cancellation of removal withholding of removal, and protection under the Convention Against Torture ("CAT"). Jimenez-Corona does not challenge the BIA's determination that her asylum application was time barred, and we consider that issue waived. We review the BIA's "legal conclusions de novo and its factual findings for substantial evidence." Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (internal citation omitted). "When, like here, the BIA issues its own decision but adopts particular parts of the IJ's reasoning, we review both decisions." Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). To the extent that we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We deny in part and dismiss in part.

The BIA determined that Jimenez-Corona is ineligible for cancellation of removal because she failed to demonstrate that removal would result in "exceptional and extremely unusual hardship" to her wife, who is a U.S. citizen. See 8 U.S.C. § 1229b(b)(1). Jimenez-Corona suggests that the BIA violated her "due process rights" by failing to consider all relevant evidence. We generally lack jurisdiction to review the agency's decisions and factual findings in cancellation of removal proceedings, but we may review colorable constitutional claims and questions of law. See Patel v. Garland, 142 S.Ct. 1614, 1622-23 (2022) (addressing the scope of federal courts' review under 8 U.S.C. § 1252(a)(2)(B), (D)). "To determine whether we have jurisdiction over claims labeled as due process violations, we must look beyond the label," Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (quoting Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)), and ensure that the claim is "more than an argument that the IJ abused his discretion," id. (quoting Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005)).

Looking beyond the label, Jimenez-Corona's claim is essentially an objection to the IJ's and BIA's assessments of the facts. Although we have yet to conclude what effect, if any, the Supreme Court's recent decision in Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062, 1069 (2020), has on what qualifies as a reviewable "mixed question of law and fact," the question that Jimenez-Corona presents is fundamentally factual. Thus, we lack jurisdiction to review her cancellation of removal claim and dismiss this portion of the petition.

We also lack jurisdiction to consider Jimenez-Corona's challenge to the IJ's partial adverse credibility determination. Although the IJ found Jimenez-Corona credible with respect to her lesbian identity, he found her not credible with respect to past physical mistreatment that she alleged she suffered in Mexico on account of her perceived sexual orientation. After endorsing the IJ's determination, the BIA concluded that Jimenez-Corona "waived" the issue by failing to "meaningfully challenge the Immigration Judge's partial adverse credibility determination regarding her mistreatment" on appeal. A "petitioner's failure to raise an issue before the BIA generally constitutes a failure to exhaust, thus depriving this court of jurisdiction to consider the issue." Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (quoting Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam)). Thus, the partial adverse credibility determination is beyond the scope of our review, and we dismiss this portion of the petition.

Substantial evidence supports the BIA's denial of Jimenez-Corona's petition for withholding of removal. A noncitizen seeking withholding of removal "must either establish past persecution . . . or demonstrate that it is more likely than not [s]he would be subject to persecution" on account of a protected ground if removed. Viridiana v. Holder, 646 F.3d 1230, 1239 (9th Cir. 2011) (internal citation omitted). Although the government does not dispute that Jimenez-Corona's sexual orientation establishes "membership in a particular social group" under 8 U.S.C. § 1231(b)(3), the IJ's partial adverse credibility finding supports the BIA's determination that she did not establish past persecution and thus was not entitled to a presumption of future persecution. See Sharma v. Garland, 9 F.4th 1052, 1060-63 (9th Cir. 2021). Jimenez-Corona's...