                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 30 2015

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



                             FOR THE NINTH CIRCUIT


ANTON SENNHAUSER,                                No. 11-73749

               Petitioner,                       Agency No. A030-748-250

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Anton Sennhauser, a native and citizen of Switzerland, petitions pro se for

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

from an immigration judge’s order of removal. Our jurisdiction is governed by 8

U.S.C. § 1252. We review de novo constitutional claims and questions of law, and


          *
             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).
review for substantial evidence the agency’s factual findings. Mohammed v.

Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in

part the petition for review.

      The agency correctly determined that Sennhauser’s conviction under

California Penal Code § 288(a) for lewd acts with a child under fourteen is

categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(A), as a law

relating to sexual abuse of a minor. See 8 U.S.C. § 1229a(c)(3)(B); United States v.

Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (section 288(a) is categorically

an aggravated felony under 8 U.S.C. § 1101(a)(43)(A)); United States v. Strickland,

601 F.3d 963, 968-70 (9th Cir. 2010) (en banc) (copy of docket sheet is a judicially

noticeable document that may be used to determine whether offense is a removable

one). Our jurisdiction therefore is limited to colorable constitutional claims and

questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D) (limiting review when

petitioner has been convicted of an aggravated felony).

      Contrary to Sennhauser’s contentions, the BIA sufficiently addressed his

contentions on appeal and did not need to address removability based on his

firearms conviction, where its finding that he was removable based on his

conviction for lewd acts with a child under fourteen was dispositive. See Simeonov

v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (“As a general rule courts and


                                           2                                    11-73749
agencies are not required to make findings on issues the decision of which is

unnecessary to the results they reach.” (citation omitted)).

      The record belies Sennhauser’s contention that he was denied a full and fair

hearing. In addition, we lack jurisdiction to review the government’s decision to

commence removal proceedings. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594,

598-99 (9th Cir. 2002). Sennhauser has not raised any other colorable

constitutional claims or questions of law.

      Section 1252(a)(2)(C) does not deprive us of jurisdiction to consider a denial

of withholding of removal or protection under the Convention Against Torture

(“CAT”) in a case such as this where the agency denied relief on the merits.

See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). The agency applied

the correct standard in its withholding of removal determination, and substantial

evidence supports the agency’s determination that Sennhauser failed to establish it

is more likely than not that his life or freedom would be threatened on account of a

protected ground if returned to Switzerland. See 8 C.F.R. § 1208.16(b)(2); Zehatye

v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (to qualify for withholding of

removal, an alien must show a clear probability of future persecution).

      The agency applied the correct standard in its CAT determination, and

substantial evidence supports the agency’s determination that Sennhauser did not


                                             3                                  11-73749
establish it is more likely than not that he would be tortured if he returned to

Switzerland. See Wakkary v. Holder, 558 F.3d 1049, 1056, 1067-68 (9th Cir.

2009).

      Sennhauser’s motion to accept an oversized and late-filed reply brief is

granted.

      This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See Reno

v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 483-85

(1999) (stating that prosecutorial discretion by the agency can be granted at any

stage, including after the conclusion of judicial review).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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