Claudia Tejeda-Pereda v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2022
• Docket: 20-73252
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CLAUDIA TEJEDA-PEREDA, No. 20-73252

Petitioner, Agency No. A203-610-714

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 15, 2022**

Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.

Claudia Tejeda-Pereda, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal

from an immigration judge’s (“IJ”) decision denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-

85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.

Tejeda-Pereda does not challenge the agency’s dispositive determination

that her asylum application was time-barred and that she did not establish changed

or extraordinary circumstances to excuse the untimely filing. See Lopez-Vasquez

v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised

and argued in a party’s opening brief are waived). Thus, we deny the petition for

review as to Tejeda-Pereda’s asylum claim.

Substantial evidence supports the agency’s determination that Tejeda-Pereda

failed to establish a clear probability of future persecution in Mexico. See Tamang

v. Holder, 598 F.3d 1083, 1094-95 (9th Cir. 2010) (fear of future persecution was

not objectively reasonable). Thus, Tejeda-Pereda’s withholding of removal claim

fails.

In light of this disposition, we need not reach Tejeda-Pereda’s contentions as

to whether she has been convicted of a particularly serious crime. See Simeonov v.

Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts are not required to decide

issues unnecessary to the results they reach). Moreover, we lack jurisdiction to

consider the contentions because Tejeda-Pereda did not raise them to the BIA. See

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction

2 20-73252 to review claims not presented to the agency); Zara v. Ashcroft, 383 F.3d 927, 931

(9th Cir. 2004) (exhaustion requirement applies to “streamlined” decisions in

which the BIA affirms the IJ’s decision without opinion).

Substantial evidence also supports the agency’s denial of CAT relief because

Tejeda-Pereda failed to show it is more likely than not she will be tortured by or

with the consent or acquiescence of the government if returned to Mexico. See

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We reject as unsupported by

the record Tejeda-Pereda’s contentions that the agency erred in its analysis of her

CAT claim.

We do not consider the materials Tejeda-Pereda references in her opening

brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,

963 (9th Cir. 1996) (en banc) (court’s review is limited to the administrative

record).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 20-73252