Martina Serrano Vazquez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2022
• Docket: 19-72218
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARTINA DOREY SERRANO No. 19-72218 VAZQUEZ, Agency No. A078-532-429 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 7, 2021** Pasadena, California

Before: KELLY,*** M. SMITH, and FORREST, Circuit Judges.

Petitioner Martina Dorey Serrano-Vazquez, a citizen of Mexico, seeks

review of the Board of Immigration Appeals’ (BIA) decision dismissing her appeal

* 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). *** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. from the decision of an Immigration Judge (IJ) denying her applications for

asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). We deny the petition for review in part and dismiss in part.

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

Suffice it to say that in January 2014, with two previous unlawful entries into the

United States, Petitioner sought admission without valid entry documents.

Pursuant to a Notice to Appear (NTA), Petitioner was charged with inadmissibility.

8 U.S.C. § 1182(a)(7)(A)(i)(I). She conceded her removability and applied for

asylum, withholding of removal, and CAT relief. The basis for her claims is

membership in a particular social group.

STANDARD OF REVIEW

We review the BIA’s decision except where it explicitly adopts the IJ’s

opinion. Plancarte v. Garland, 9 F.4th 1146, 1151 (9th Cir. 2021). We review

legal questions de novo. Nguyen v. Barr, 983 F.3d 1099, 1101 (9th Cir. 2020).

But we review the factual findings that underlie the BIA’s decision for substantial

evidence. Plancarte, 9 F.4th at 1151. We defer to the agency’s findings “unless

any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B); see I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992);

Hussain v. Rosen, 985 F.3d 634, 642 (9th Cir. 2021).

DISCUSSION

2 A. Exhaustion

Petitioner argues that, under Pereira v. Sessions, 138 S. Ct. 2105 (2018), her

NTA is invalid because it does not specify the date and time of the proceeding in

accordance with 8 U.S.C. § 1229(a). Accordingly, she argues that the immigration

court lacks subject matter and personal jurisdiction. Not having been raised before

the BIA, this issue is unexhausted. According to Petitioner, she was not required

to exhaust this issue because the Supreme Court’s decision in Pereira was not

released until after her briefing before the BIA. This is incorrect: Petitioner filed

her brief before the BIA on February 21, 2019, and the Court decided Pereira on

June 21, 2018. Petitioner’s failure to exhaust thus bars our review, and we must

dismiss this claim. See Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th Cir. 2004).

B. Asylum and Withholding of Removal

Petitioner challenges the denial of her asylum and withholding of removal

claims at large, but she does not address the agency’s finding that she lacked a

well-founded fear of future persecution because of changed circumstances.

Petitioner only mentions changed circumstances when reciting the legal standard

for defeating a presumption of well-founded fear. This is insufficient. Fed. R.

App. P. 28(a)(8)(A); Crime Just. & Am., Inc. v. Honea, 876 F.3d 966, 978–79 (9th

Cir. 2017). Petitioner necessarily waives any challenge to this finding. Honea,

876 F.3d at 979.

3 Moreover, the IJ’s conclusion that she lacks a well-founded fear of future

persecution is supported by substantial evidence given the lack of contact between

Petitioner and her ex-husband for decades, which is dispositive of her asylum and

withholding of removal claims. Petitioner’s last contact with her former husband

was over 20 years ago, and he lives “some three days’ travel from the town where

[Petitioner] would reside if she returns to Mexico.” Given our disposition, it is

unnecessary to reach the merits of Petitioner’s arguments concerning particular

social group membership. See Hussain, 985 F.3d at 642.

C. Protection Under the Convention Against Torture

When reviewing a claim for CAT relief, the BIA must provide its reasons

and demonstrate that it has properly considered all factors. Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). This includes consideration of

country conditions in the record, so “[t]he failure of the IJ and BIA to consider

evidence of country conditions constitutes reversible error.” Aguilar-Ramos v.

Holder, 594 F.3d 701, 705 (9th Cir. 2010); see also 8 C.F.R. § 208.16(c)(3) (2021).

This is because country conditions alone can satisfy a CAT applicant’s burden.

Aguilar-Ramos, 594 F.3d at 705. Here, the IJ and the BIA did not mention the

country conditions in the record. Because we cannot assume that the BIA

considered evidence it does not discuss, we must remand. Etemadi v. Garland, 12

F.4th 1013, 1026 (9th Cir. 2021).

4 The petition for review is DIMISSED IN PART, DENIED IN PART, and

REMANDED IN PART.