Simon Valencia-Mata v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIMON VALENCIA-MATA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70742
Agency No. A208-080-926
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2022**
Portland, Oregon
Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,*** District
Judge.
Petitioner Simon Valencia-Mata, a native and citizen of Mexico, petitions
for review of the denial of his application for asylum, cancellation of removal,
withholding of removal, and protection under the Convention Against Torture
FILED
JUN 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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(CAT). Valencia-Mata’s application claimed that he feared removal to Mexico
because a gang would target him for persecution and torture based on his
opposition to cartels and his membership in a family that owned a piece of land of
which the cartel took control.
The immigration judge denied Valencia-Mata’s asylum application because
Valencia-Mata failed to file his application within one year of his most recent
arrival in the United States. Valencia-Mata failed to challenge that determination
before the BIA, and the BIA deemed the issue waived. This court thus lacks
jurisdiction to hear Valencia-Mata’s argument that his asylum application was
timely. See 8 U.S.C. § 1252(d)(1); Iraheta-Martinez v. Garland, 12 F.4th 942, 948
(9th Cir. 2021).
As to Valencia-Mata’s request for CAT protection, substantial evidence
supports the BIA’s determination that Valencia-Mata failed to show he would
more likely than not be tortured upon return to Mexico. Valencia-Mata has never
been injured, let alone tortured, in Mexico. Also, Valencia-Mata’s family members
have relocated to other parts of Mexico and lived safely, including his two brothers
and one aunt.
Valencia-Mata cannot receive withholding of removal because substantial
evidence supports the BIA’s determination that he could relocate safely within
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Mexico. An applicant who is otherwise eligible for withholding of removal may
nevertheless be returned to their country of origin if the government can meet its
burden to show that the applicant can “avoid future persecution by relocating to
another part of the applicant’s country of nationality . . . and under all the
circumstances, it would be reasonable to expect the applicant to do so.” Akosung
v. Barr, 970 F.3d 1095, 1101 (9th Cir. 2020) (quoting 8 C.F.R.
§ 1208.13(b)(1)(i)(B)). The BIA denied withholding because it found that
Valencia-Mata could relocate within Mexico to avoid future persecution.
Valencia-Mata fails to clearly challenge this dispositive determination before this
Court. Even if this Court construes Valencia-Mata’s sparse briefing on this issue
as having meaningfully argued that the agency erred as to relocation, substantial
evidence supports the BIA’s finding that Valencia-Mata could safely relocate
within Mexico and that it would be reasonable to expect him to do so. Thus, even
if this Court agreed with Valencia-Mata’s nexus arguments on the withholding
issue, on remand “neither the result nor the BIA’s basic reasoning would change.”
Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019). This Court thus denies the
petition as to withholding.
The Court also denies the petition as to Valencia-Mata’s arguments that he is
entitled to cancellation of removal. This Court does “not have jurisdiction to
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reweigh the evidence underlying the IJ’s conclusion that removal would not cause
[the petitioner’s] children to suffer an ‘exceptional and extremely unusual
hardship.’” Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir. 2009).
Valencia-Mata’s arguments, although labeled as a constitutional challenge to the
agency’s decision, merely ask the Court to reweigh the evidence that the agency
already considered. See Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir.
2001) (“Although we retain jurisdiction to review due process challenges, a
petitioner may not create the jurisdiction that Congress chose to remove simply by
cloaking an abuse of discretion argument in constitutional garb.”). Valencia-
Mata’s arguments fall outside this Court’s jurisdiction.
The petition is DENIED.
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