                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                          APR 19 2016

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

BACILIO ABARCA-POPOCA, AKA                       No. 14-70431
Luis Abarca-Torres,
                                                 Agency No. A095-805-775
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted April 13, 2016**

Before:        FARRIS, TALLMAN, and BYBEE, Circuit Judges.

      Bacilio Abarca-Popoca, 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 denial of his applications for withholding of removal and

relief under the Convention Against Torture (“CAT”). Our jurisdiction is

          *
             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).
governed by 8 U.S.C. § 1252. We review de novo questions of law, Vilchez v.

Holder, 682 F.3d 1195, 1198 (9th Cir. 2012), and review for substantial evidence

the denial of CAT relief, Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008).

We deny in part and dismiss in part the petition for review.

       Abarca-Popoca does not challenge the agency’s determination that his

conviction under California Health & Safety Code § 11351.5 is categorically an

aggravated felony for illicit trafficking in a controlled substance as defined by 8

U.S.C. § 1101(a)(43)(B) that renders him removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th

Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are

waived). Thus our jurisdiction is limited to constitutional claims and questions of

law, and we lack jurisdiction to review Abarca-Popoca’s challenge to the agency’s

discretionary determination that he has not rebutted the presumption that his

offense is a particularly serious crime that statutorily bars him from withholding of

removal. See 8 U.S.C. 1252(a)(2)(C)-(D); Pechenkov v. Holder, 705 F.3d 444,

448-49 (9th Cir. 2012) (no jurisdiction to review a particularly serious crime

determination where the only challenge is that the agency “incorrectly assessed the

facts”).




                                           2                                     14-70431
      Substantial evidence supports the agency’s denial of deferral of CAT relief,

where Abarca-Popoca failed to establish that it is more likely than not he would be

tortured by or with the consent or acquiescence of the government if returned to

Mexico. See 8 C.F.R. § 1208.16(c)(2)-(3); Silaya, 524 F.3d at 1073.

      Abarca-Popoca’s contentions that the BIA failed to engage in substantive

analysis or relied upon a boilerplate decision are unsupported by the record. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).

      In light of our disposition, we need not reach Abarca-Popoca’s remaining

contentions regarding his eligibility for withholding of removal.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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