                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 26 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ABEL VICTOR GRACIAN,                            No.    18-70734

                Petitioner,                     Agency No. A038-817-333

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

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

                          Submitted February 19, 2019**

Before:      FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

      Abel Victor Gracian, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision finding him ineligible for withholding of

removal and denying relief under the Convention Against Torture (“CAT”). We

have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the


      *
             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).
agency’s particularly serious crime determination and review for substantial

evidence the denial of CAT relief. Konou v. Holder, 750 F.3d 1120, 1124, 1127

(9th Cir. 2014). We deny in part and dismiss in part the petition for review.

      The agency did not abuse its discretion in determining that Gracian’s

convictions under California Health and Safety Code §§ 11378 and 11379(a) were

particularly serious crimes that rendered him ineligible for withholding of removal,

where the IJ cited to and applied the correct legal analysis to appropriate record

evidence. See 8 U.S.C. § 1231(b)(3)(B)(ii); see also Konou, 750 F.3d at 1126-27

(listing factors to consider in determining whether a crime is particularly serious

and finding no abuse of discretion in the particularly serious crime determination).

To the extent Gracian asks the court to review the agency’s weighing of those

factors, we lack jurisdiction to do so. See Avendano-Hernandez v. Lynch, 800 F.3d

1072, 1077 (9th Cir. 2015) (the court may not reweigh the evidence and reach its

own conclusion in review of the agency’s particularly serious crime

determination). We do not address Gracian’s contentions as to the merits of his

withholding of removal claim because the agency did not deny relief on those

grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011)

(“In reviewing the decision of the BIA, we consider only the grounds relied upon

by that agency.”) (citation and internal quotation marks omitted).

      Substantial evidence supports the agency’s denial of deferral of removal


                                          2                                     18-70734
under CAT because Gracian failed to show that it is more likely than not that he

would be tortured by or with the acquiescence of the government of Mexico. See

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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