Franco-De Rivera v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 2025
• Docket: 24-1623
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JENIFFER ALEJANDRA FRANCO-DE No. 24-1623 RIVERA; ANDRE RIVERA-FRANCO, Agency Nos. A208-173-547 Petitioners, A208-173-548 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted July 7, 2025**

Before: OWENS, LEE, and BUMATAY, Circuit Judges.

Jennifer Alejandra Franco-de Rivera and her minor son (together,

“Petitioners”), natives and citizens of El Salvador, petition for review of the Board

of Immigration Appeals’ (“BIA”) decision dismissing their appeal from the

Immigration Judge’s (“IJ”) decision denying their applications for asylum and

* 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). withholding of removal.1 As the parties are familiar with the facts, we do not

recount them here. We deny the petition for review.

1. Petitioners contend that the BIA erred in affirming the denial of their

asylum and withholding claims without addressing the issue of nexus. The BIA

determined that Petitioners had failed to contest the IJ’s finding that they had not

shown the Salvadoran government was unable or unwilling to protect them from

gang violence. That finding is dispositive of both Petitioners’ asylum and

withholding claims. See Sauceda v. Garland, 23 F.4th 824, 832 (9th Cir. 2022)

(asylum); Meza-Vasquez v. Garland, 993 F.3d 726, 729 (9th Cir. 2021)

(withholding). Petitioners do not challenge the BIA’s waiver determination. And

after reaching this dispositive issue, the BIA was not required to address other

issues. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). Thus, the

BIA properly affirmed the denial of Petitioners’ asylum and withholding claims.

2. Petitioners also assert that the BIA erred in failing to separately analyze

the minor child’s claims from the perspective of a child. Before the IJ and BIA,

Petitioners framed the minor’s claims as based on Franco-de Rivera’s claims and

did not contend that they should be treated differently. Thus, their argument is

unexhausted, and we decline to consider it. See Umana-Escobar v. Garland, 69

1 Petitioners do not contest, and have thus waived any challenge to, the BIA’s finding that they waived their claim for protection under the Convention Against Torture. See Escobar Santos v. Garland, 4 F.4th 762, 764 n.1 (9th Cir. 2021).

2 24-1623 F.4th 544, 550 (9th Cir. 2023).

3. Petitioners further maintain that remand is required because they became

eligible for voluntary departure after filing their brief with the BIA, when the BIA

decided Matter of M-F-O-, 28 I. & N. Dec. 408 (BIA 2021). However, in Matter

of M-F-O-, the BIA merely adopted nationwide our holding in Posos-Sanchez v.

Garland, 3 F.4th 1176, 1185-86 (9th Cir. 2021), by which the BIA was already

bound. See 28 I. & N. Dec. at 416; see also Melkonian v. Ashcroft, 320 F.3d 1061,

1065 (9th Cir. 2003) (stating that “[t]he BIA must . . . follow the decisions of our

court”). As Petitioners could have briefed this issue before the BIA but did not do

so, the issue is unexhausted, and we do not consider it. See Umana-Escobar, 69

F.4th at 550.

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

PETITION FOR REVIEW DENIED.

3 24-1623