Vatsal Joshi v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VATSAL JOSHI, No. 19-72484
Petitioner, Agency No. A063-668-690
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Vatsal Joshi, a native and citizen of India, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for withholding of
removal and relief under the Convention Against Torture (“CAT”). Our
jurisdiction is governed by 8 U.S.C. § 1252. We review factual findings for
*
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).
substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir.
2014). We review de novo claims of due process violations in immigration
proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part
and dismiss in part the petition for review.
Joshi does not challenge the BIA’s determination that he was convicted of a
particularly serious crime that rendered him ineligible for withholding of removal.
See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not
specifically raised and argued in a party’s opening brief are waived). Thus, we
deny the petition for review as to Joshi’s withholding of removal claim.
Substantial evidence supports the BIA’s denial of deferral of removal under
CAT because Joshi failed to show it is more likely than not he would be tortured
by or with the consent or acquiescence of the government if returned to India. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Garcia-Milian, 755 F.3d at
1033-35 (concluding that petitioner did not establish the necessary “state action”
for CAT relief).
The record does not support Joshi’s contentions that the IJ and BIA failed to
consider evidence, ignored the law, or otherwise erred in its analysis of his deferral
of removal under CAT claim. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th
Cir. 2010) (the BIA need not write an exegesis on every contention); Fernandez v.
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the
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presumption that the BIA reviewed the record); see also Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim). To
the extent Joshi raises for the first time due process contentions as to the IJ’s
conduct, we lack jurisdiction to consider them. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004) (requiring exhaustion of procedural errors that could be
corrected by the BIA).
We also lack jurisdiction to consider Joshi’s contentions regarding
adjustment of status and the cognizability of a particular social group. See id. at
677-78 (court lacks jurisdiction to review claims not presented below).
We do not consider the materials Joshi references in his opening brief that
are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64
(9th Cir. 1996) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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