Camarillo-Martinez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2024
• Docket: 21-1306
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 7 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LORENA CAMARILLO-MARTINEZ, No. 21-1306 Agency No. Petitioner, A205-601-216 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 5, 2024** Pasadena, California

Before: H.A. THOMAS and DESAI, Circuit Judges, and SOTO, District Judge.***

* 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 James Alan Soto, United States District Judge for the District of Arizona, sitting by designation. Petitioner Lorena Camarillo-Martinez, a citizen of Mexico, appeals a decision

of the Board of Immigration Appeals (“BIA”) denying her petition for withholding

of removal and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We deny the petition.

We review the BIA’s purely legal determinations de novo. See B.R. v.

Garland, 26 F.4th 827, 835 (9th Cir. 2022). We review the BIA’s factual findings

under the deferential substantial evidence standard and will uphold them unless the

evidence compels a contrary result. Id. We also review denials of withholding of

removal and CAT relief for substantial evidence. Yali Wang v. Sessions, 861 F.3d

1003, 1007 (9th Cir. 2017).

1. The government argues that this court lacks jurisdiction over this appeal

because Petitioner did not file her petition for review within 30 days of the agency’s

reinstatement of removal. We disagree. We have jurisdiction to hear Petitioner’s

appeal because a reinstated order of removal does not become a final order of

removal for purposes of 8 USC § 1252(b)(1) until a petitioner’s withholding-only

proceedings have concluded. Ortiz-Alfaro v. Holder, 694 F.3d 955, 959–60 (9th Cir.

2012). Other circuits have held the Supreme Court’s recent decisions in Nasrallah

v. Barr, 590 U.S. 573 (2020) and Johnson v. Guzman Chavez, 594 U.S. 523 (2021)

preclude appellate review of petitions filed more than 30 days after a reinstatement

order is issued. See e.g., Bhaktibhai-Patel v. Garland, 32 F.4th 180, 193 (2nd Cir.

2 21-1306 2022) (holding Guzman Chavez abrogated precedent that a “reinstated removal order

is not ‘administratively final’ during the pendency of withholding-only

proceedings”). But this Circuit’s recent decision in Alonso-Juarez v. Garland

expressly rejects the reasoning of those circuits. 80 F.4th 1039, 1049–51 (9th Cir.

2023) (construing Nasrallah and Guzman Chavez more narrowly than other

circuits). Under Ortiz-Alfaro v. Holder, reinstated removal orders do not become

administratively final until after withholding-only proceedings are concluded. 694

F.3d 955, 959–60 (9th Cir. 2012). Ortiz-Alfaro remains good law, Alonso-Juarez, 80

F.4th at 1050–51, and we therefore have jurisdiction to hear Petitioner’s appeal.

Here, Petitioner filed her petition for review before this court more than 30

days after the reinstatement order was issued. Her order of removal, however,

became final only when the BIA dismissed her appeal in withholding-only

proceedings on November 12, 2021. Given that Petitioner filed her petition for

review with this court on December 9, 2021, within 30 days of the BIA’s dismissal,

we have jurisdiction to hear Petitioner’s appeal.

2. Petitioner waived review of the BIA’s determination that she was not

persecuted on account of her political opinions. Failure to preserve an issue before

the appropriate administrative body waives that issue before an appellate court.

Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004). Petitioner did not raise

3 21-1306 any challenge to the BIA’s determination in her briefing before this court, and the

issue is therefore waived.

3. Petitioner has failed to exhaust her withholding of removal claim based on

her proposed particular social groups (“PSGs”) by failing to challenge the

Immigration Judge’s determination that her PSGs were not cognizable before the

BIA. Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (“A

petitioner’s failure to raise an issue before the BIA generally constitutes a failure to

exhaust . . . .”). We therefore decline to review the merits of Petitioner’s withholding

of removal claim based on her proposed PSGs.

4. Substantial evidence supports the BIA’s determination that Petitioner

fails to qualify for CAT protection. A petitioner seeking withholding of removal

under CAT must establish “that she will more likely than not be tortured with the

consent or acquiescence of a public official if removed to her native country.”

Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). If credible, a

petitioner’s testimony may support this burden of proof without corroboration. 8

C.F.R. § 1208.16(c)(2). In assessing whether it is more likely than not that an

applicant will be tortured in the proposed country of removal, the court may

consider: evidence of past torture inflicted upon the applicant; evidence that the

applicant could relocate to a part of the country of removal where he is not likely to

be tortured; evidence of gross, flagrant, or mass violations of human rights within

4 21-1306 the country of removal; and other relevant information pertaining to the country of

removal. 8 C.F.R § 1208.16(c)(3); see also Maldonado v. Lynch, 786 F.3d 1155,

1162–64 (9th Cir. 2015) (en banc).

Here, the record suggests Petitioner previously avoided torture by relocating

within Mexico. There is also no evidence that the alleged harm she would face in

Mexico would be by or at the instigation of or with the consent or acquiescence of a

public official. Therefore, substantial evidence supports the determination that

Petitioner cannot show it is “more likely than not” that she will be tortured if

removed to Mexico and is therefore ineligible for CAT protection.

DENIED.

5 21-1306