MARIA LUISA PENA-RIVERA V. MERRICK GARLAND, No. 20-70927 (9th Cir. 2021)

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FILED NOT FOR PUBLICATION DEC 17 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT MARIA LUISA PENA-RIVERA, Petitioner, No. U.S. COURT OF APPEALS 20-70927 Agency No. A038-102-265 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 14, 2021** Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges. Maria Luisa Pena-Rivera, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for withholding of removal and relief under the Convention Against Torture (“CAT”). * 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We deny in part and dismiss in part the petition for review. In her opening brief, Pena-Rivera does not challenge the determinations that she was convicted of a particularly serious crime, that her ineffective assistance of counsel claim fails, and that she failed to establish her eligibility for a U visa or the availability of such relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived). The BIA did not err in concluding that Pena-Rivera waived her claim for deferral of removal under CAT. See Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019) (no error in BIA's waiver determination). We lack jurisdiction to consider Pena-Rivera’s contentions as to the merits of her claim for deferral of removal under CAT because she did not raise them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented below). The government’s motion for judicial notice (DE 21) is granted. The temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 20-70927

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