FILED

NOT FOR PUBLICATION

JUN 13 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIMON VALENCIA-MATA, No. 21-70742

Petitioner, Agency No. A208-080-926

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

* 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). (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

2 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

3 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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