Martinez De Martinez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2024
• Docket: 23-1120
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CINDY KARINA MARTINEZ DE No. 23-1120 MARTINEZ; ANDERSSON BENJAMIN Agency Nos. MARTINEZ MARTINEZ; WILLIAM A208-587-982 LARRY MARTINEZ MARTINEZ, A208-587-983 A208-587-984 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 10, 2024 **

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

Cindy Karina Martinez de Martinez (“Martinez”), a native and citizen of El

Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”)

decision dismissing her appeal from the immigration judge’s (“IJ”) denial of

* 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). asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). Martinez also seeks review of the BIA’s denial of a motion to

remand. Martinez’s two children are derivative beneficiaries of her asylum

application.

“We review the denial of asylum, withholding of removal and CAT claims

for substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.

2019). “Under this standard, we must uphold the agency determination unless the

evidence compels a contrary conclusion.” Id. We review the denial of a motion to

remand for abuse of discretion. Taggar v. Holder, 736 F.3d 886, 889 (9th Cir.

2013). As the parties are familiar with the facts, we do not recount them here. We

deny the petition for review.

1. We uphold the BIA’s denial of asylum, withholding of removal, and

protection under CAT.

In both the asylum and withholding contexts, a petitioner alleging past

persecution must show that: (1) the harm they have suffered “rises to the level of

persecution; (2) the persecution was on account of one or more protected grounds;

and (3) the persecution was committed by the government, or by forces that the

government was unable or unwilling to control.” Baghdasaryan v. Holder, 592

F.3d 1018, 1023 (9th Cir. 2010) (asylum); see also Reyes-Reyes v. Ashcroft, 384

F.3d 782, 788 (9th Cir. 2004) (withholding). Asylum and withholding of removal

2 23-1120 are further unavailable if the applicant could avoid persecution by relocating within

the country, and it would be reasonable to expect the applicant to do so. Akosung

v. Barr, 970 F.3d 1095, 1101 (9th Cir. 2020).

Martinez contends that the IJ erred in finding that a) she had not established

that the Salvadorean government is unable or unwilling to protect her and b) she

could internally relocate within El Salvador. However, as the government points

out, Martinez did not raise these arguments before the BIA. Indeed, the BIA

deemed them “waived” and did not address them. Because Martinez has thus

failed to exhaust, as required by 8 U.S.C. § 1252(d)(1), we reject these arguments

on appeal. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023)

(noting that the exhaustion requirement in § 1252(d)(1), although not

jurisdictional, is a mandatory claims-processing rule).

As a result, we do not reach Martinez’s other argument on appeal—that the

IJ erred in finding that she did not experience past harm rising to the level of

persecution. Even assuming that the IJ erred in this manner, her failure to exhaust

two elements necessary for relief independently supports her ineligibility for

asylum and withholding.

In addition, Martinez has failed to exhaust her claim for CAT protection. On

appeal to the BIA, she did not challenge the IJ’s determination that she is ineligible

for CAT protection. As a result, we deny this portion of her petition. See Umana-

3 23-1120 Escobar, 69 F.4th at 550.

Thus, we affirm the BIA’s denial of asylum, withholding of removal, and

2. The BIA did not abuse its discretion in denying Martinez’s motion to

remand her removal proceedings. Martinez contends that the IJ erred by relying on

Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), a case that has since been

vacated, see 28 I. & N. Dec. 307 (A.G. 2021).

However, a remand to the IJ would not change the result in this case

because, as explained above, Martinez is not eligible for asylum. See Shin v.

Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (noting that petitioners “who seek to

remand or reopen proceedings to pursue relief bear a ‘heavy burden’ of proving

that, if proceedings were reopened, the new evidence would likely change the

result in the case” (citation omitted)). Indeed, the BIA expressly disclaimed

reliance on the since-vacated Matter of A-B- and affirmed the IJ’s denial of relief

based on independent grounds—specifically, that Martinez had not challenged the

IJ’s determinations regarding relocation and whether the government is unable or

unwilling to protect her.

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

PETITION DENIED.

4 23-1120