Jamie Oviedo Garcia v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JAMIE OVIEDO GARCIA, AKA Jamie No. 17-71700 Oviedo, Agency No. 077-284-059 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 12, 2022** Pasadena, California Before: WARDLAW and BENNETT, Circuit Judges, and KATZMANN,*** Judge. Jamie Oviedo Garcia, a native and citizen of Mexico, challenges the decision * 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 Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. of the Board of Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s (“IJ’s”) denial of his claims for asylum, withholding of removal, cancellation of removal, and protection under the Convention Against Torture (“CAT”). Exercising our jurisdiction under 8 U.S.C. § 1252(a)(1), we dismiss the petition in part and deny it in part. As a threshold matter, we lack jurisdiction to consider Oviedo Garcia’s argument that changed circumstances excuse his belated application for asylum. See Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (“Our jurisdiction to review mixed questions of law and fact is limited to instances where the underlying facts are ‘undisputed.’” (quoting Husyev v. Mukasey, 528 F.3d 1172, 1178–79 (9th Cir. 2008))). The IJ pretermitted and denied Oviedo's asylum application because it rejected the facts underlying his changed circumstances argument as unreliable and unpersuasive. The BIA affirmed. Here, the evidence demonstrating Oviedo’s alleged changed circumstances is disputed by both parties, and was rejected as not credible by the BIA and IJ. We therefore lack jurisdiction over the BIA’s decision to pretermit Oviedo’s asylum application on the basis of his failure to show changed circumstances.1 1 Even a de novo review of the BIA’s application of the law to the undisputed facts alone likewise supports denial of Oviedo’s petition for review. In light of the various factors underlying the agency’s adverse credibility determinations, discussed below, the record “does not compel the conclusion that [Oviedo] has shown ‘changed circumstances’ so that [his] asylum application should have been 2 With respect to Oviedo’s argument that his application for cancellation of removal was improperly pretermitted, we affirm the decision of the BIA. The Immigration and Nationality Act expressly provides that the IJ or BIA may only cancel the removal of an individual who “has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of [8 U.S.C.].” 8 U.S.C. § 1229b(b)(1)(C). We have previously held that a crime of domestic violence under California Penal Code § 273.5 is “categorically a crime of domestic violence within the meaning of [8 U.S.C.] § 1227(a)(2)(E)(i).” Carrillo v. Holder, 781 F.3d 1155, 1159 (9th Cir. 2015). Because Oviedo has …

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