Agustin Martinez-Villa v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGUSTIN MARTINEZ-VILLA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-73407
Agency No. A070-710-730
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Agustin Martinez-Villa, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his applications for cancellation of
removal, asylum, withholding of removal, and relief under the Convention Against
FILED
FEB 15 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence factual findings, Zehatye v. Gonzales, 453 F.3d 1182,
1184-85 (9th Cir. 2006), and de novo questions of law, Brezilien v. Holder, 569
F.3d 403, 411 (9th Cir. 2009). We dismiss in part and deny in part the petition for
review.
Because Martinez-Villa did not argue to the BIA that his conviction for
possession for sale of methamphetamine did not constitute an aggravated felony,
we lack jurisdiction to consider this new challenge. See Abebe v. Mukasey, 554
F.3d 1203, 1208 (9th Cir. 2009) (claim raised in notice of appeal but not pursued in
the later-filed brief to the BIA is not properly exhausted). Accordingly his
cancellation of removal and asylum claims fail.
We also lack jurisdiction to consider Martinez-Villa’s new claim that the
agency applied the wrong legal standard when it determined his drug trafficking
conviction presumptively constituted a particularly serious crime because he failed
to raise this challenge to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004). In addition, the record indicates that he conceded his conviction is a
drug trafficking crime that triggers the presumption it is a particularly serious
crime. See Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir. 2008) (“[P]ossession
of a controlled substance with the intent to sell contains a trafficking element and is

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an aggravated felony.”); Miguel-Miguel v. Gonzales, 500 F.3d 941, 945-50 (9th
Cir. 2007) (aggravated felonies involving unlawful trafficking in controlled
substances presumptively constitute particularly serious crimes). Accordingly, he
is statutorily ineligible for withholding of removal and withholding of removal
under CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).
To the extent Martinez-Villa contends the BIA abused its discretion in
applying the presumption related to drug trafficking offenses, his challenge does
not raise a colorable question of law over which this court has jurisdiction. See 8
U.S.C. §§ 1252(a)(2)(C) and (D); see also Pechenkov v. Holder, No. 08-73287,
2012 WL 5995430 (9th Cir. Dec. 3, 2012).
Finally, substantial evidence supports the BIA’s denial of deferral of
removal under CAT because Martinez-Villa did not establish it is more likely than
not that he would be tortured by the Mexican government or with its consent or
acquiescence. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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