Opinion
21-70562
01-21-2022
EDGAR HERRERA-OLMEDO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076-374-679
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
MEMORANDUM [*]
Edgar Herrera-Olmedo, 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 applications for asylum, withholding of removal, and cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency's factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.
In his opening brief, Herrera-Olmedo does not raise any challenge to the agency's determination that he failed to establish extraordinary circumstances to excuse his untimely asylum application, or to the BIA's conclusion that his proposed social group of "taking concrete steps to oppose gang membership and gang authority" was not properly before it. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party's opening brief are waived). The record does not otherwise compel the conclusion that Herrera-Olmedo established changed circumstances to excuse his untimely asylum application. See 8 C.F.R. § 1208.4(a)(4). Thus, Herrera-Olmedo's asylum claim fails.
As to withholding of removal, Herrera-Olmedo does not contest the BIA's determination that he waived challenge to the IJ's denial of relief, see Lopez-Vasquez, 706 F.3d at 1079-80, and we lack jurisdiction to consider his contentions as to the merits of his withholding of removal claim because he failed to raise them to the BIA, see Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).
We also lack jurisdiction to review the agency's discretionary determination that Herrera-Olmedo did not show exceptional and extremely unusual hardship to a qualifying relative for purposes of cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). The petition does not raise a colorable legal or constitutional claim over which we retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Martinez-Rosas, 424 F.3d at 930.
The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal is otherwise denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.