                                                                            FILED
                             NOT FOR PUBLICATION                            AUG 18 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ANDREI IVANOVICH ULESCENCO,                      No. 12-72806
a.k.a. Andrei Ulescenco,
                                                 Agency No. A094-532-189
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted August 13, 2014**

Before:        SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

       Andrei Ivanovich Ulescenco, a native and citizen of Moldova, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) dismissing his

appeal from a decision of an immigration judge (“IJ”) denying his applications for

withholding of removal and protection under the Convention Against Torture

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings, Blandino-Medina v. Holder,

712 F.3d 1338, 1348 (9th Cir. 2013), and review de novo questions of law,

Pechenkov v. Holder, 705 F.3d 444, 449 (9th Cir. 2012). We deny in part and

dismiss in part the petition for review.

      Substantial evidence supports the agency’s denial of Ulescenco’s application

for CAT protection because Ulescenco failed to demonstrate that he would more

likely than not suffer torture upon his removal to Moldova. See Blandino-Medina,

712 F.3d at 1348 (affirming the denial of CAT protection for a petitioner who “had

not presented evidence that similarly-situated individuals [we]re being tortured by

[government] officials”).

      The record does not support Ulescenco’s contention that the BIA failed to

consider the country-conditions evidence in the record. See Larita-Martinez v.

INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000) (“[A]n alien attempting to establish

that the B[IA] . . . fail[ed] to consider relevant evidence must overcome the

presumption that it did review the evidence.”).

      Ulescenco’s claim that the IJ violated due process by excluding his late-filed

documents lacks merit. See Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010)

(per curiam) (finding no due process violation, where the petitioner had “a


                                           2                                    12-72806
reasonable opportunity” to present evidence); see also Taggar v. Holder, 736 F.3d

886, 890 (9th Cir. 2013) (“If an application or document is not filed within the time

set by the Immigration Judge, the opportunity to file that application or document

shall be deemed waived.” (quoting 8 C.F.R. § 1003.31(c))).

      Because Ulescenco does not contest the agency’s determination that his

2011 conviction for first-degree burglary under California Penal Code § 459 is for

an aggravated-felony crime of violence that renders him removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii), we lack jurisdiction to review the agency’s discretionary

determination that Ulescenco’s offense is a particularly serious crime that

statutorily bars him from withholding of removal. See Pechenkov, 705 F.3d at 448

(holding that the court lacks jurisdiction under 8 U.S.C. § 1252(a)(2)(C)-(D) to

review a particularly-serious-crime determination where the only challenge is that

the agency “incorrectly assessed the facts”). Ulescenco has failed to raise a

colorable constitutional claim or question of law that would invoke our jurisdiction

under 8 U.S.C. § 1252(a)(2)(D). See Mendez-Castro v. Mukasey, 552 F.3d 975,

978 (9th Cir. 2009) (“To be colorable in this context, the [claim] need not be

substantial, but the claim must have some possible validity.” (citation omitted)).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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