Daniel Diaz-Sandoval v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2022
• Docket: 16-72264
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL WILBERTO DIAZ-SANDOVAL, No. 16-72264

Petitioner, Agency No. A206-734-838

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

Respondent.

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

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

Daniel Wilberto Diaz-Sandoval, a native and citizen of El Salvador,

petitions pro se for review of the of the Board of Immigration Appeals’ (“BIA”)

order dismissing his appeal from an immigration judge’s decision denying his

applications for asylum, withholding of removal, and protection under the

* 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). Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review for substantial evidence the agency’s factual findings. Conde

Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We dismiss in part and

deny in part the petition for review.

We lack jurisdiction to consider Diaz-Sandoval’s contentions regarding the

merits of his asylum and withholding of removal claims because he failed to raise

them before the BIA. See Segura v. Holder, 605 F.3d 1063, 1066 (9th Cir. 2010)

(“[Petitioner’s] failure to assert [a] claim before the BIA deprived it of the

opportunity to address the issue and divests us of jurisdiction to review it.”).

Substantial evidence supports the agency’s denial of CAT protection

because Diaz-Sandoval failed to show it is more likely than not he would be

tortured by or with the consent or acquiescence of the government if returned to El

Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We do not consider the materials referenced in the opening brief that are

outside the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir.

1996) (en banc).

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

2 16-72264