Chacon Ovalle v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 3, 2024
• Docket: 24-9530
• Status: Unpublished

Opinion

Appellate Case: 24-9530 Document: 56-1 Date Filed: 10/03/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 3, 2024 _________________________________ Christopher M. Wolpert Clerk of Court LIDIA GUISELA CHACON OVALLE,

Petitioner,

v. No. 24-9530 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before EID, KELLY, and ROSSMAN, Circuit Judges.** _________________________________

Petitioner Lidia Guisela Chacon Ovalle seeks review of a final order of

removal issued by a single member of the Board of Immigration Appeals (BIA). The

BIA dismissed her appeal of an immigration judge’s decision denying her requests

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

Torture. A.R. 2–5. Our jurisdiction arises under 8 U.S.C. § 1252(a)(1), and we deny

review.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 24-9530 Document: 56-1 Date Filed: 10/03/2024 Page: 2

The parties are familiar with the facts and we need not restate them here. The

BIA’s decision is the final agency determination and our review is limited to the

issues addressed by the appellate immigration judge (“IJ”). Kechkar v. Gonzales,

500 F.3d 1080, 1083 (10th Cir. 2007). If necessary, we may consult the underlying

decision of the immigration judge on the grounds relied upon by the BIA. Escobar-

Hernandez v. Barr, 940 F.3d 1361, 1360 (10th Cir. 2019).

Our review of legal conclusions by the BIA is de novo. Miguel-Pena v.

Garland, 94 F.4th 1145, 1153 (10th Cir. 2024). Factual findings are reviewed for

substantial evidence, and they “are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). Miguel-

Pena, 94 F.4th at 1153.

On appeal, Ms. Chacon argues that the IJ erred in denying relief by relying

upon overturned law, misapplying the law, and giving insufficient weight to Ms.

Chacon’s testimony. Aplt. Br. at 4. The government first argues that Ms. Chacon

has waived a challenge to the BIA’s decision because her opening brief only

addresses the IJ’s decision and is insufficient. In the alternative, the government

addresses the merits.

We agree that by failing to engage with the BIA’s decision and instead

challenging only the IJ’s decision, she has waived her challenge. See Sanchez-Lopez

v. Garland, No. 22-9566, 2023 WL 4311507, at *4 (10th Cir. July 3, 2023). For

example, Ms. Chacon contests the IJ’s reliance on “overturned case law” but the BIA

explained that it did not rely upon a now-vacated decision and in any event, Ms.

2 Appellate Case: 24-9530 Document: 56-1 Date Filed: 10/03/2024 Page: 3

Chacon had not otherwise qualified for asylum. A.R. at 4. Rule 28(a)(8)(A) requires

a statement of “contentions and the reasons for them, with citations to the authorities

and parts of the record on which the [petitioner] relies.” Arguments not raised in an

opening brief are waived. United States v. Banks, 884 F.3d 998, 1024 (10th Cir.

2018).

Accordingly, review is denied.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge