                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 17 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANTONIO GONZALEZ-MENDOZA, aka                    No. 05-73239
Antonio Mendoza Gonzalez,
                                                 Agency No. A034-589-304
             Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



ANTONIO GONZALEZ-MENDOZA, aka                    No. 05-74487
Antonio Mendoza Gonzalez,
                                                 Agency No. A034-589-304
             Petitioner,

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals

                     Argued and Submitted November 6, 2009

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

      Petitioner Antonio Gonzalez-Mendoza petitions from two decisions of the

Board of Immigration Appeals (BIA). We deny his petition from the BIA’s

decision of May 4, 2005, and dismiss his petition from the BIA’s July 18, 2005,

denial of his motion for reconsideration.

      1.     May 4, 2005, BIA Decision

      In its May 4, 2005, decision, the BIA dismissed Gonzalez-Mendoza’s appeal

from the immigration judge’s (IJ’s) order of removal. We lack jurisdiction to

review a discretionary decision to deny a 212(c) waiver, Vargas-Hernandez v.

Gonzales, 497 F.3d 919, 923 (9th Cir. 2007), as well as orders of removal for

aggravated-felon status, 8 U.S.C. § 1252(a)(2)(C). We do, however, have

jurisdiction to review any “constitutional claims or questions of law,” id. §

1252(a)(2)(D), which are examined de novo, Cervantes-Gonzales v. INS, 244 F.3d

1001, 1004 (9th Cir. 2001). A denial of a claim for deferral of removal based on

the Convention Against Torture (CAT) is reviewed for substantial evidence.

Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir. 2004), superseded by statute on

other grounds as stated in Khan v. Holder, No. 07-72586, 2009 WL 2871222 (9th

Cir. Sept. 9, 2009); see also Delgado v. Holder, 563 F.3d 863, 874 (9th Cir. 2009).


                                            2
      We reject Gonzalez-Mendoza’s claim that the IJ applied an incorrect legal

standard in denying his application for a 212(c) waiver. The IJ correctly stated the

legal standard, expressly stating that he was obliged to balance all the relevant

factors. Even if the IJ applied an incorrect standard, the BIA undoubtedly applied

the correct standard in its analysis; it is the BIA’s and not the IJ’s decision that we

review. Gonzalez-Mendoza disagrees with the weight the BIA and IJ gave to the

drug offense he committed after receiving a 212(c) waiver in 1990, but that

discretionary balancing is not subject to our review.

      The BIA also applied the correct legal standard of In re Y— L—, 23 I. & N.

Dec. 270 (A.G. 2002), overruled on other grounds by Zheng v. Ashcroft, 332 F.3d

1186, 1196 (9th Cir. 2003), to conclude that because Gonzalez-Mendoza’s 1996

drug conviction was a “particularly serious crime” under 8 U.S.C. §

1231(b)(3)(B)(ii), he was not eligible for withholding of removal. Neither the BIA

nor the IJ violated due process in concluding that Gonzalez-Mendoza is not eligible

for withholding. The record contained sufficient information for the BIA to make

its decision, and any incompleteness in the record is due solely to Gonzalez-

Mendoza’s failure to submit evidence.

      Contrary to Gonzalez-Mendoza’s argument, the IJ considered him for

deferral of removal under CAT. Even if the IJ may have failed to consider


                                           3
deferral, the BIA considered the evidence Gonzalez-Mendoza submitted in favor of

deferral, and we conclude that substantial evidence supports the decision that

Gonzalez-Mendoza is not entitled to CAT deferral. The assertion that he will be

targeted by the corrupt Mexican police or army is at best speculative. Accordingly,

we deny the petition for review of the BIA’s May 4, 2005, decision.

      2.     July 18, 2005, BIA Decision

      We lack jurisdiction over Gonzalez-Mendoza’s claim that the IJ should have

continued the August 12, 2003, hearing sua sponte as soon as he noticed that

Gonzalez-Mendoza had a bandaged finger. See Barron v. Ashcroft, 358 F.3d 674,

677-78 (9th Cir. 2004) (court of appeals lacks jurisdiction over claims not timely

raised in administrative proceedings). Even if we did have jurisdiction over the

claim, we would find it meritless. We dismiss the petition for review of the BIA’s

July 18, 2005, decision.

      DENIED IN PART, DISMISSED IN PART.




                                          4
