NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ERNESTO HERNANDEZ-VELASCO, No. 19-71168 Petitioner, Agency No. A205-576-046 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 8, 2021** Before: CANBY, TASHIMA, and MILLER, Circuit Judges. Ernesto Hernandez-Velasco, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for withholding of removal, relief under the Convention * 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). Against Torture (“CAT”), and cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We review for abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de novo questions of law. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s determination that Hernandez- Velasco did not establish a clear probability of future persecution in Mexico. See Lanza v. Ashcroft, 389 F.3d 917, 934-35 (9th Cir. 2004) (no clear probability of future persecution). We decline to reach Hernandez-Velasco’s contentions as to a pattern and practice of persecution that were raised for the first time in his reply brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised for the first time in the reply brief are waived.”). Thus, Hernandez- Velasco’s withholding of removal claim fails. Substantial evidence also supports the agency’s denial of CAT relief because Hernandez-Velasco did not establish that it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). 2 19-71168 As to cancellation of removal, we lack jurisdiction to review the agency’s discretionary determination that Hernandez-Velasco did not show exceptional and extremely unusual hardship to a qualifying relative for purposes of cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). The petition does not raise a colorable legal or constitutional claim over which we retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Martinez-Rosas, 424 F.3d at 930. Hernandez-Velasco’s reliance on Guerrero-Lasprilla v. Barr, ––– U.S. ––––, 140 S. Ct. 1062 (2020), is misplaced. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (application of a legal standard to undisputed facts is a legal question under 8 …
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