Gerardo Vergara Albanil v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERARDO VERGARA ALBANIL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1316
Agency No.
A213-082-436
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2023**
Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges.
Gerardo Vergara Albanil, 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 decision denying his applications for cancellation of
removal, withholding of removal, and protection under the Convention Against
* 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).
FILED
NOV 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de
novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We review for substantial evidence the agency’s factual findings. Conde
Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We dismiss in part and
deny in part the petition for review.
Vergara Albanil’s claim the agency violated due process by excluding the
testimony of his wife and son fails for lack of prejudice where their affidavits
submitted on appeal did not present additional favorable factors nor address
petitioner’s adverse factors. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000) (“prejudice . . . means that the outcome of the proceeding may have been
affected by the alleged violation.”).
Because Vergara Albanil does not otherwise raise a colorable legal or
constitutional claim, we lack jurisdiction to review the agency’s denial of
cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B); Patel v. Garland, 142 S.
Ct. 1614, 1622-23 (2022) (where the agency denies a form of relief listed in
8 U.S.C. § 1252(a)(2)(B)(i), federal courts have jurisdiction to review
constitutional claims and questions of law, but not factual findings and
discretionary decisions).
We do not reach Vergara Albanil’s contentions regarding continuous
physical presence, rehabilitation, or identity, because the BIA did not rely on these

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grounds. See Najmabadi v. Holder, 597 F.3d 983, 992 (9th Cir. 2010) (“our
review is limited to the grounds actually relied upon by the BIA”).
Substantial evidence supports the agency’s determination that Vergara
Albanil failed to establish he was or would be persecuted on account of a protected
ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if
membership in a particular social group is established, an applicant must still show
that “persecution was or will be on account of his membership in such group”);
Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be
free from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground”). Thus, Vergara Albanil’s
withholding of removal claim fails.
In light of this disposition, we need not reach Vergara Albanil’s remaining
contentions regarding cognizability and membership in his proposed particular
social group. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts
and agencies are not required to decide issues unnecessary to the results they
reach).
Substantial evidence also supports the agency’s denial of CAT protection
because Vergara Albanil failed to show it is more likely than not he will be
tortured by or with the consent or acquiescence of the government if returned to
Mexico. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of

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torture too speculative).
The stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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