Antonius Da Silva v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 19, 2024
• Docket: 23-1704
• Status: Unpublished

Opinion

USCA4 Appeal: 23-1704 Doc: 29 Filed: 04/19/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1704

ANTONIUS DA SILVA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted: April 18, 2024 Decided: April 19, 2024

Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ON BRIEF: Alex G. Isbell, PALLADINO, ISBELL & CASAZZA, LLC, Philadelphia, Pennsylvania, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Stephen J. Flynn, Assistant Director, Jessica R. Lesnau, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-1704 Doc: 29 Filed: 04/19/2024 Pg: 2 of 3

PER CURIAM:

Antonius Da Silva, a native and citizen of Indonesia, petitions for review of an order

of the Board of Immigration Appeals dismissing his appeal from the immigration judge’s

decision denying Da Silva’s application for withholding of removal. ∗ We deny the petition

for review.

Here, the Board held that Da Silva waived review of one of the immigration judge’s

alternative, dispositive rulings—to wit: that Da Silva failed to establish that the Indonesian

government is unable or unwilling to control his alleged persecutors, see Portillo Flores v.

Garland, 3 F.4th 615, 626, 632-37 (4th Cir. 2021) (en banc) (discussing three elements of

an asylum claim, particularly the “government control element”)—by failing to

specifically address that aspect of the immigration judge’s decision in his administrative

appeal brief. Because this ruling was independently dispositive of Da Silva’s application

for withholding of removal, the Board declined to reach the issues that Da Silva did assert

and affirmed the immigration judge’s denial of relief on this basis.

Upon consideration of the arguments Da Silva raises in this court, we discern no

error in the Board’s application of its procedural waiver rule. See In re D-G-C-, 28 I. & N.

Dec. 297, 297 n.1 (B.I.A. 2021) (observing Board’s procedural rule that issues a respondent

does not meaningfully challenge on appeal will be deemed waived); cf. Pinos-Gonzalez v.

∗ Da Silva does not challenge the agency’s analysis as to the timeliness of his asylum application or the denial of his request for protection under the Convention Against Torture. Accordingly, these issues are forfeited. See Fed. R. App. P. 28(a)(8)(A); Ullah v. Garland, 72 F.4th 597, 602 (4th Cir. 2023) (explaining that a party forfeits appellate review of those issues and claims not raised in the party’s briefs).

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Mukasey, 519 F.3d 436, 440-41 (8th Cir. 2008) (finding no error in Board’s application of

procedural waiver to petitioner). Thus, we agree with the Attorney General that the

arguments Da Silva advances regarding the government control element are not

administratively exhausted, see 8 U.S.C. § 1252(d)(1), and therefore are not properly

before us for review, see Tepas v. Garland, 73 F.4th 208, 213 (4th Cir. 2023) (observing

that, although § 1252(d)(1) is not jurisdictional, it “remains a mandatory claim-processing

rule”).

Accordingly, we deny the petition for review. See In re Da Silva (B.I.A. June 7,

2023). We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

PETITION DENIED