NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Heriberto Elmes-Mariano, No. 21-8 Petitioner, Agency No. A205-975-859 v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted on April 19, 2023 ** Portland, Oregon Before: RAWLINSON and SUNG, Circuit Judges, and MORRIS,*** District Judge. Petitioner Heriberto Elmes-Mariano, a native of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), which dismissed his appeal of an order of an Immigration Judge (“IJ”). In his petition, * 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). *** The Honorable Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. 1 Elmes-Mariano seeks review of only the denials of his applications for cancellation of removal, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 over the withholding and CAT claims, and we deny the petition. We lack jurisdiction to review the claim regarding cancellation of removal, 8 U.S.C. § 1252(a)(2)(B)(i), and we dismiss the petition as to that claim. 1. The Immigration Judge (“IJ”) did not err by issuing a Notice to Respondent, which notified Elmes-Mariano of his obligation to produce documentation of his criminal history. Elmes-Mariano argues that, in substance, the Notice was an improper demand for records related to his criminal history under Rosas-Castaneda v. Holder, 655 F.3d 875 (9th Cir. 2011), overruled on other grounds, Young v. Holder, 697 F.3d 976 (9th Cir. 2012). The Immigration and Nationality Act (INA) requires applicants for relief from removal to “comply with the applicable requirements to submit information or documentation in support of the applicant’s application for relief or protection as provided . . . in the instructions for the application form.” 8 U.S.C. § 1229a(c)(4)(B). The application that Elmes-Mariano completed required him to “submit documentation” of his criminal history. See Dept. of Justice, Executive Office for Immigration Review, Form EOIR–42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents 5 (Rev. Jul. 2014). Elmes-Mariano does not dispute that he failed to provide any documentation about his criminal history before his 2 individual hearing.1 The IJ did not act outside of their authority in issuing a Notice to Elmes-Mariano notifying him that he had not yet “provided any documentation . . . regarding his criminal history” and advising him “of the need to submit evidence regarding the disposition of each citation, arrest and/or conviction” as required. Rosas-Castaneda does not apply in this case. In Rosas-Castaneda, an applicant for relief from removal produced his record of conviction—a criminal complaint and plea agreement. 655 F.3d at 883. The IJ requested the applicant to …
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