Antonio Zacarias Gonzalez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2022
• Docket: 20-72267
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTONIO ZACARIAS GONZALEZ; No. 20-72267 ANDRE YOVANY ZACARIAS MONTEJO, AKA Andres Yovany Zacarias Agency Nos. A076-705-379 Montejo, A208-178-545

Petitioners, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 7, 2022** Portland, Oregon

Before: GRABER and VANDYKE, Circuit Judges, and REISS,*** District Judge.

Petitioners Antonio Zacarias Gonzalez (“Zacarias Gonzalez”) and his son,

* 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). *** The Honorable Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. Andre Yovany Zacarias Montejo (“Zacarias Montejo”) petition for review of a

decision of the Board of Immigration Appeals (“BIA”) affirming the order of an

Immigration Judge denying their applications for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”). We dismiss the

petition.

We have jurisdiction to review an appeal from the BIA only if an alien “has

exhausted all administrative remedies available to the alien as of right ….” 8 U.S.C.

§ 1252(d)(1). Failure to raise an issue before the BIA constitutes failure to exhaust

administrative remedies and deprives this court of jurisdiction to hear the matter.

See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). Similarly, issues not

raised and substantively addressed in a party’s opening brief before this court are

waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

Turning first to Petitioners’ applications for asylum and withholding of

removal, Petitioners failed to exhaust and have otherwise waived any argument

concerning two dispositive agency findings, namely, that Petitioners failed to prove

that Guatemalan authorities were unable or unwilling to protect them and that

internal relocation was not feasible. See Velasquez-Gaspar v. Barr, 976 F.3d 1062,

1064 (9th Cir. 2020); Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011)

(citing 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3)(i)). Petitioners failed to challenge either

finding in their notice of appeal or appeal brief to the BIA. Petitioners’ opening brief

2 to this court is likewise deficient. As a result, we lack jurisdiction to consider, and

Petitioners have otherwise waived, any challenge to the above-noted findings. See

Figueroa, 543 F.3d at 492; Martinez-Serrano, 94 F.3d at 1259.

Regarding Petitioners’ applications for CAT protection, Petitioners failed to

challenge the Immigration Judge’s denial of their applications in both their notice of

appeal and appeal brief to the BIA. Likewise, Petitioners failed to challenge the

denial in their opening brief to this court. We thus lack jurisdiction to consider, and

Petitioners have otherwise waived, any challenge to the denial. See Figueroa, 543

F.3d at 492; Martinez-Serrano, 94 F.3d at 1259.

PETITION DISMISSED.