NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CANDIDO PENA RAMIREZ, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent.

No. 16-72682 

Agency No. A206-356-901 

MEMORANDUM*

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).

FILED

MAY 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-72682 

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-
3 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.