                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

CANDIDO PENA RAMIREZ,                           No.    16-72682

                Petitioner,                     Agency No. A206-356-901

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                               Submitted May 15, 2018**

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

      Candido Pena Ramirez, 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 denying his application for withholding of

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



      *
             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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the

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.

      As to the agency’s particularly serious crime determination, the court’s

review is limited to whether the agency relied on the appropriate factors and proper

evidence. 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). The agency did not abuse

its discretion in determining that Ramirez’s conviction under Cal. Penal Code

§ 288(a) is a particularly serious crime that rendered him ineligible for withholding

of removal, where the agency cited to and applied the correct legal analysis to

appropriate record evidence. See 8 U.S.C. § 1231(b)(3)(B)(ii) (an applicant

convicted of a particularly serious crime is ineligible for withholding of removal);

Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012) (no abuse of discretion in a

particularly serious crime determination where the agency reviewed the conviction

and related records); see also Konou, 750 F.3d at 1126-27 (listing factors to

consider in determining whether a crime is particularly serious). We do not

address Ramirez’s contentions as to nexus and membership in particular social

groups because the BIA did not deny relief on these grounds. See Santiago-


                                          2                                     16-72682
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). Thus, Ramirez’s withholding of removal

claim fails.

      Substantial evidence supports the agency’s denial of CAT relief because

Ramirez failed to establish it is more likely than not that he would be tortured by or

with the consent or acquiescence of the government of Mexico. See Garcia-Milian

v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (evidence did not compel

conclusion that petitioner established the state action necessary for CAT relief).

      Finally, we lack jurisdiction to consider Ramirez’s unexhausted contention

that the IJ improperly denied voluntary departure. See Barron v. Ashcroft, 358

F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not

presented to the agency).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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