NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN MENDEZ-BAROCIO, AKA Johnny 

Mendez, AKA Juan Mendez, AKA Juan 

Barola Mendez, AKA Juan B. Mendoza, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-70635 

Agency No. A090-098-913 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Juan Mendez-Barocio, a native and citizen of Mexico, petitions pro se for 

review of the Board of Immigration Appeals’ (“BIA”) order denying a motion to 

remand and dismissing his appeal from an immigration judge’s decision finding 

* 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).

FILED

MAY 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-70635 

him removable, denying his motions to terminate, and denying his application for 

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

governed by 8 U.S.C. § 1252. We review de novo the agency’s determination that 

a crime is as an aggravated felony. Jauregui-Cardenas v. Barr, 946 F.3d 1116, 

1118 (9th Cir. 2020). We review for abuse of discretion the denial of a motion to 

terminate. Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020). We review de 

novo claims of due process violations in immigration proceedings. Jiang v. 

Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the 

petition for review.

Mendez-Barocio’s opposed motion for stay and abeyance is denied.

The agency did not err in concluding Mendez-Barocio’s conviction in 

violation of California Penal Code (“CPC”) §§ 664 and 187(a) is an aggravated 

felony rendering him removable where the statute is divisible, and the judicially 

noticeable documents unambiguously establish his conviction for attempted 

murder. See Gomez Fernandez v. Barr, 969 F.3d 1077, 1090 (9th Cir. 2020) (CPC 

§ 187(a) is divisible); 8 U.S.C. § 1101(a)(43)(A), (U). The agency did not err in 

concluding Mendez-Barocio’s conviction in violation of CPC § 245(a)(1) is a 

crime of violence aggravated felony, rendering him removable. See United States 

v. Vasquez-Gonzalez, 901 F.3d 1060, 1065-68 (9th Cir. 2018) (offense under CPC 

§ 245(a)(1) was a crime of violence and thus an aggravated felony); United States 
3 19-70635 

v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009) (“If the conviction is based on 

‘force likely to produce great bodily injury,’ such force . . . represents ‘actual 

force’ that is violent in nature.”). We reject as unsupported by the record MendezBarocio’s contention that the agency sustained a charge of removability that was 

not listed in his notice to appear (“NTA”). Thus, the agency did not abuse its 

discretion in denying Mendez-Barocio’s motion to terminate based on challenges 

to his removability. See Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016) (“The 

BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to 

law.”) (internal citation omitted).

To the extent Mendez-Barocio challenges the jurisdiction over his 

proceedings under Pereira v. Sessions, 138 S. Ct. 2105 (2018), his contention is 

foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“the lack 

of time, date, and place in the NTA sent to [petitioner] did not deprive the 

immigration court of jurisdiction over her case”). Thus, the agency did not abuse 

its discretion in denying Mendez-Barocio’s motion to terminate based on 

challenges to the immigration court’s jurisdiction. See Dominguez, 975 F.3d at 

741 (no abuse of discretion in denial of motion to terminate where jurisdictional 

challenge failed).

Mendez-Barocio’s contention that his right to counsel was violated fails. 

See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice 
4 19-70635 

to prevail on a due process claim). We lack jurisdiction to consider MendezBarocio’s contentions that his NTA did not provide him with reasonable notice of 

the charges against him, he was not provided an opportunity to voice objections to 

the amendment of his NTA, and he was denied a reasonable opportunity to respond 

to or present evidence, because his contentions are procedural errors requiring 

exhaustion before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 

2004) (court lacks jurisdiction to review claims not presented to the agency).

Mendez-Barocio does not challenge, and therefore waives, the agency’s 

denial of deferral of removal under the CAT and the BIA’s denial of his motion to 

remand. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) 

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

To the extent Mendez-Barocio seeks to challenge his detention, he must seek 

relief in district court. 

The stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.