Diaz-Salgado v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 14, 2023
• Docket: 21-79
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 14 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLON DIAZ-SALGADO, No. 21-79

Petitioner, Agency No. A201-290-558

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

Respondent.

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

Argued and Submitted March 17, 2023 Submission Vacated March 23, 2023 Resubmitted September 14, 2023 Pasadena, California

Before: PAEZ, MILLER, and VANDYKE, Circuit Judges.

Petitioner Marlon Diaz-Salgado seeks review of a Board of Immigration

Appeals (BIA) decision affirming the denial by the Immigration Judge (IJ) of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. withholding of removal or deferral of removal under the Convention Against Torture

(CAT).

After briefing was completed, the government filed a notice of supplemental

authorities contending that we lack jurisdiction over the petition because the petition

was filed on May 17, 2021, “more than thirty days after [Diaz-Salgado’s]

reinstatement order was issued on February 18, 2018.” The government argues that

recent Supreme Court precedent—specifically, Nasrallah v. Barr, 140 S. Ct. 1683

(2020), and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021)—undermines our

previous rule that a “reinstated removal order does not become final until the

reasonable fear of persecution and withholding of removal proceedings are

complete.” Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012). We recently

decided that our old rule remains valid following these recent Supreme Court

decisions. See Alonso-Juarez v. Garland, No. 15-72821, slip op. at 3–4 (9th Cir.

Sept. 8, 2023). Because Diaz-Salgado filed his petition for review within thirty days

after the BIA affirmed the IJ’s denial of withholding and other relief, his petition is

timely and we have jurisdiction under 8 U.S.C. § 1252. Id.

Reaching the merits, we deny the petition. “Given the BIA’s summary

affirmance, we review the IJ’s decision as if it were the BIA’s decision.” Zheng v.

Ashcroft, 397 F.3d 1139, 1143 (9th Cir. 2005) (citation omitted). We review the

agency’s decision under the highly deferential substantial evidence standard of

2 review. See Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021)

(per curiam). Under substantial evidence, the agency’s findings of fact are

considered “conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir.

2022) (quotation omitted). We review de novo questions of law. Regalado-Escobar

v. Holder, 717 F.3d 724, 726–27 (9th Cir. 2013).

The IJ denied withholding of removal because the harm Diaz-Salgado

suffered and feared from the gang members lacked a nexus to a protected ground.

An applicant for withholding relief must show a nexus between a protected ground

and a past or feared future harm. See Barajas-Romero v. Lynch, 846 F.3d 351, 357

(9th Cir. 2017). Substantial evidence supports the agency’s finding that neither

Diaz-Salgado’s past harm nor his fear of future harm bears a nexus to a protected

ground. See Ruiz-Colmenares, 25 F.4th at 748. The IJ reasonably found his past

harms were a result of generalized violence and not related to a protected ground.

See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).

Diaz-Salgado claims that the IJ mischaracterized his proposed particular

social group. But the IJ found that there was no nexus to any protected ground. So

even assuming the IJ mischaracterized the proposed social group, the record would

not compel the conclusion that Diaz-Salgado was harmed, or likely would be

3 harmed, because of a protected ground. See Ruiz-Colmenares, 25 F.4th at 748.

Accordingly, the IJ’s denial of withholding was supported by substantial evidence.

The IJ denied CAT protection because Diaz-Salgado failed to show that he

would suffer “future harm from the [gang] … with the consent or the acquiescence

of the Salvadoran government.” In deciding a CAT claim, an IJ must determine

whether the petitioner “is more likely than not to be tortured in the country of

removal.” 8 C.F.R. § 1208.16(c)(4). An “essential element” in determining whether

a petitioner is eligible for CAT relief is whether the petitioner would likely suffer

torture “inflicted by or at the instigation of or with the consent or acquiescence of a

public official … or other person acting in an official capacity.” B.R. v. Garland, 26

F.4th 827, 844–45 (9th Cir. 2022) (quoting 8 C.F.R. § 208.18). The record indicates

that the police in Victoria helped Diaz-Salgado and the police in Ocotillo accepted

Diaz-Salgado’s reports at least twice without hurting him. Substantial evidence

supports the agency’s finding that Diaz-Salgado did not establish that he would

suffer future torture with the consent or acquiescence of the Salvadoran government.

Diaz-Salgado also argues that the IJ denied him statutory and Fifth

Amendment due process, but he did not exhaust those arguments by presenting them

to the BIA. Although he argued to the BIA that the IJ erred in analyzing the

evidence, “[p]ointing to the entirety of the testimony”—or worse here, the entirety

of the record—“does not … put the BIA on notice as to the specific issues so that

4 the BIA has an opportunity to pass on those issues.” Gonzalez-Castillo v. Garland,

47 F.4th 971, 981 (9th Cir. 2022) (cleaned up). That the BIA affirmed without

adopting the IJ’s decision does not excuse Diaz-Salgado’s failure to exhaust. See

De Mercado v. Mukasey, 566 F.3d 810, 814 n.1, 815 n.4 (9th Cir. 2009). Moreover,

although constitutional due process claims can be excused from the exhaustion

requirement “if they involve more than ‘mere procedural error’ that an

administrative tribunal could remedy,” the alleged IJ errors were procedural errors

that the BIA could have “remed[ied]” if Diaz-Salgado had raised them to the BIA.

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Accordingly, any

unexhausted due process errors provide no basis for granting this petition.

PETITION DENIED.