BACILIO ABARCA-POPOCA, AKA Luis Abarca-Torres v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BACILIO ABARCA-POPOCA, AKA
Luis Abarca-Torres,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-70431
Agency No. A095-805-775
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Bacilio Abarca-Popoca, 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 denial of his applications for withholding of removal and
relief under the Convention Against Torture (“CAT”). Our jurisdiction is
FILED
APR 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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governed by 8 U.S.C. § 1252. We review de novo questions of law, Vilchez v.
Holder, 682 F.3d 1195, 1198 (9th Cir. 2012), and review for substantial evidence
the denial of CAT relief, Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008).
We deny in part and dismiss in part the petition for review.
Abarca-Popoca does not challenge the agency’s determination that his
conviction under California Health & Safety Code § 11351.5 is categorically an
aggravated felony for illicit trafficking in a controlled substance as defined by 8
U.S.C. § 1101(a)(43)(B) that renders him removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii). See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th
Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are
waived). Thus our jurisdiction is limited to constitutional claims and questions of
law, and we lack jurisdiction to review Abarca-Popoca’s challenge to the agency’s
discretionary determination that he has not rebutted the presumption that his
offense is a particularly serious crime that statutorily bars him from withholding of
removal. See 8 U.S.C. 1252(a)(2)(C)-(D); Pechenkov v. Holder, 705 F.3d 444,
448-49 (9th Cir. 2012) (no jurisdiction to review a particularly serious crime
determination where the only challenge is that the agency “incorrectly assessed the
facts”).
14-70431 2

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Substantial evidence supports the agency’s denial of deferral of CAT relief,
where Abarca-Popoca failed to establish that it is more likely than not he would be
tortured by or with the consent or acquiescence of the government if returned to
Mexico. See 8 C.F.R. § 1208.16(c)(2)-(3); Silaya, 524 F.3d at 1073.
Abarca-Popoca’s contentions that the BIA failed to engage in substantive
analysis or relied upon a boilerplate decision are unsupported by the record. See
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).
In light of our disposition, we need not reach Abarca-Popoca’s remaining
contentions regarding his eligibility for withholding of removal.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
14-70431 3

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