Moreno Bueno v. McHenry

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 22, 2025
• Docket: 23-3317
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 22 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN MORENO BUENO; ANDREA No. 23-3317 VILLAVISENCIO PACAYA; NICOLAS MORENO VILLAVISENCIO, Agency Nos. A241-735-124 Petitioners, A241-735-125 A241-735-126 v.

JAMES R. MCHENRY III, Acting Attorney General, MEMORANDUM*

Respondent.

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

Submitted January 13, 2025** Pasadena, California

Before: TASHIMA, RAWLINSON, and M. SMITH, Circuit Judges.

Petitioners Juan Moreno Bueno (Moreno Bueno), his wife Andrea

Villavisencio-Pacaya, and their minor son, natives and citizens of Peru, petition for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). review of a decision of the Board of Immigration Appeals (BIA or Board). The

Board dismissed Petitioners’ appeal of a decision of the Immigration Judge (IJ),

who denied their applications for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition.

1. We decline to consider Petitioners’ challenge to the determination that

they are not entitled to asylum or withholding of removal. Petitioners have failed

to argue in their brief that the BIA erred in concluding that they waived a challenge

to the IJ’s dispositive finding that there was no nexus between the alleged

persecution and any protected group. Due to this failure, the Petitioners have

waived any challenge to the BIA’s determination on this point. See Rios v. Lynch,

807 F.3d 1123, 1125 n.1 (9th Cir. 2015) (stating that the petitioner “abandoned his

claims for asylum and CAT protection by not addressing them with any specificity

in his briefs”). Even if the nexus issue were properly before us, we would still

decline to reach it because, as the government argues, Petitioners have failed to

exhaust this issue by failing to raise it before the BIA. See Bare v. Barr, 975 F.3d

952, 960 (9th Cir. 2020) (citations omitted) (“Exhaustion requires a

non-constitutional legal claim to the court on appeal to have first been raised in the

administrative proceedings below, and to have been sufficient to put the BIA on

2 notice of what was being challenged.” (citations omitted)); see also Suate-Orellana

v. Garland, 101 F.4th 624, 629 (9th Cir. 2024) (explaining that “[t]he exhaustion

requirement contained in 8 U.S.C. § 1252(d)(1) is a non-jurisdictional

‘claim-processing rule,’” and that “‘[a] claim-processing rule [is] “mandatory” in

the sense that a court must enforce the rule if a party “properly raise[s]” it’” (final

three alterations in original) (first quoting Santos-Zacaria v. Garland, 598 U.S.

411, 419 (2023); then quoting Fort Bend County v. Davis, 587 U.S. 541, 549

(2019))).

2. The Board’s denial of CAT relief is supported by substantial evidence.

See Singh v. Garland, 97 F.4th 597, 602 (9th Cir. 2024) (stating that “[o]ur review

is limited to the BIA’s decision, except to the extent that the IJ’s opinion is

expressly adopted,” factual findings are reviewed for substantial evidence, and

questions of law are reviewed de novo (quoting Soriano-Vino v. Holder, 653 F.3d

1096, 1099 (9th Cir. 2011))). Although, as the IJ acknowledged, the threats

Moreno Bueno received “may have been frightening,” they do not rise to the level

of past torture. Nor do they show a likelihood of future torture. See

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029–30 (9th Cir. 2019).

The petition for review is DENIED.