Xiaw Zhang v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT XIAW YANG ZHANG, No. 20-72550 Petitioner, Agency No. A209-388-087 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 17, 2023** Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges. Xiaw Yang Zhang, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture * 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). (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We deny in part and dismiss in part the petition for review. In his opening brief Zhang does not contest, and therefore forfeits, the BIA’s dispositive determination that he did not challenge the IJ’s denial of his claims on the merits. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). We do not reach Zhang’s contentions as to his credibility because the BIA did not deny relief on those grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA). Thus, we deny the petition for review as to his asylum, withholding of removal, and CAT claims. In light of this disposition, we do not reach Zhang’s remaining contentions regarding his eligibility for relief. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts are not required to decide issues unnecessary to the results they reach). We lack jurisdiction to consider Zhang’s contentions regarding ineffective assistance of counsel because he failed to raise them to 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); see also Puga v. Chertoff, 488 F.3d 812, 815- 16 (9th Cir. 2007) (ineffective assistance of counsel claims must be raised in a motion to reopen before the BIA). 2 20-72550  We do not consider the materials Zhang references in his opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (court’s review is limited to the administrative record). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 20-72550