Caal Jalal v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 2024
• Docket: 23-175
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CRISTINA GUDELIA CAAL JALAL, No. 23-175 Agency No. Petitioner, A209-794-648 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 9, 2024** Pasadena, California

Before: SCHROEDER, BUMATAY, and MENDOZA, Circuit Judges. Concurrence by Judge BUMATAY.

Cristina Gudelia Caal Jalal, a native and citizen of Guatemala, seeks review

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

Judge’s (“IJ”) denial of asylum and withholding of removal. Caal Jalal also seeks

* 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). review of the BIA’s denial of her motion to remand. We have jurisdiction under

8 U.S.C. § 1252. Reviewing the denial of asylum and withholding of removal for

substantial evidence, Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021), and

reviewing the denial of the motion to remand for abuse of discretion, Angov v. Lynch,

788 F.3d 893, 897 (9th Cir. 2015), we deny the petition.1

1. Substantial evidence supports the BIA’s decision to affirm the IJ’s denial

of asylum and withholding of removal. Caal Jalal failed to challenge several of the

IJ’s dispositive findings on appeal to the BIA, leaving those challenges unexhausted

and not properly before us on review. See 8 U.S.C. § 1252(d)(1). For instance, Caal

Jalal did not challenge the IJ’s findings that her fear of future harm was not

objectively reasonable and that relocation within Guatemala was reasonably

feasible. The BIA thus did not err in deeming those arguments waived. Moreover,

had Caal Jalal exhausted those challenges, substantial evidence would still support

the BIA’s affirmance because Caal Jalal failed to make required showings, including

that her husband harmed her on account of her proffered particular social group. See

8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(a); see also Plancarte Sauceda v. Garland,

23 F.4th 824, 832–33 (9th Cir. 2022) (“An applicant for asylum and withholding

1 Although Caal Jalal asserted a claim for protection under the Convention Against Torture before the IJ, she did not meaningfully challenge the IJ’s denial of that claim before the BIA. Thus, the claim is not properly before us on review. See 8 U.S.C. § 1252(d)(1).

2 23-175 bears the burden of establishing eligibility. . . . [Both forms of relief] depend on a

finding that the applicant was harmed, or threatened with harm, on account of a

protected ground.”)

2. The BIA did not abuse its discretion in denying Caal Jalal’s motion to

remand. Caal Jalal failed to explain why she could not have obtained the

psychological evaluation before presenting her claims before the IJ. See Goel v.

Gonzales, 490 F.3d 735, 738–39 (9th Cir. 2007). And in any event, her

psychological evaluation would not change the outcome of her appeal given her

failure to exhaust her claims.

PETITION DENIED.

3 23-175 FILED Caal Jalal v. Garland, No. 23-175 FEB 13 2024 BUMATAY, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur with the judgment of the court. In denying Cristina Gudelia Caal

Jalal’s asylum and withholding of removal claims, the Board of Immigration

Appeals expressly found that she waived the arguments she now makes before our

court. While the exhaustion requirement is no longer jurisdictional, it is still

“mandatory.” Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023)

(simplified). I thus would not reach the other grounds to deny her asylum and

withholding of removal claims.