Aguiriano-Flores v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 13, 2024
• Docket: 23-3394
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 13 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCOS AURELIO AGUIRIANO- No. 23-3394 FLORES; IKER LICHTSTEINER Agency Nos. AGUIRIANO-SARMIENTO; YOLIBETH A220-453-258 STEFANNY SARMIENTO- A220-453-259 ALCANTARA, A220-314-022 Petitioners, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 11, 2024** San Francisco, California

Before: WARDLAW, GOULD, and BUMATAY, Circuit Judges.

Marcos Aurelio Aguiriano-Flores, a native and citizen of Honduras, his wife,

* 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). and his son petition for review of a Board of Immigration Appeals (“BIA”) decision

affirming the order of an Immigration Judge (“IJ”) denying an application for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We have jurisdiction to review the BIA’s decision under 8 U.S.C.

§ 1252.

We review questions of law de novo. Macedo Templos v. Wilkinson, 987 F.3d

877, 879 (9th Cir. 2021). We review findings of fact for substantial evidence and

uphold the agency’s factual findings “unless the evidence compels a contrary result.”

Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016) (quoting Hernandez-

Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir. 2011)). “Where, as here, the BIA

agrees with the IJ decision and also adds its own reasoning, we review the decision

of the BIA and those parts of the IJ’s decision upon which it relies.” Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). We deny the petition.

1. Aguiriano-Flores contends that the BIA erred by not finding that his harm

rises to the level of severity required for past persecution. The BIA found that

Aguiriano-Flores was beaten by gang members, but he only suffered bruising and

he did not seek any medical attention. The BIA also considered that he was told by

gang members to stop recruiting for his church. Such incidents do not compel a

conclusion of past persecution. See Gu v. Gonzales, 454 F.3d 1014, 1020 (9th Cir.

2006).

2 23-3394 Aside from some boilerplate language, Aguiriano-Flores does not

meaningfully address the BIA’s determinations on the lack of a fear of future

persecution. Nor does he address the BIA’s conclusion on the reasonableness of

internal relocation. Because Aguiriano-Flores did not challenge these dispositive

findings, those issues are waived and we deny his petition for asylum and

withholding of removal. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.

1996) (holding that a party waives an issue by failing to meaningfully discuss that

issue in the opening brief). Because Aguiriano-Flores does not address his CAT

claim in his opening brief, we also deny his petition on that claim as well.

2. Finally, Aguiriano-Flores asserts that the IJ violated his due-process rights

by articulating an “impermissibly circular and fatally insufficient” particular social

group and by “abandon[ing] his role as an unbiased arbiter of fact and law.” That

said, Aguiriano-Flores did not raise this issue to the BIA. We decline to entertain

“due process claims based on correctable procedural errors unless the alien raised

them below.” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002); see also Umana-

Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023). Here, the BIA could have

corrected the alleged constitutional error by modifying the particular social group or

otherwise remedying the IJ’s allegedly deficient behavior. See Sola v. Holder, 720

F.3d 1134, 1135–36 (9th Cir. 2013).

PETITION DENIED.

3 23-3394