Norma Lopez Ceja v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2023
• Docket: 19-70211
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NORMA ANGELICA LOPEZ CEJA; No. 19-70211 ANGEL MANUEL GOMEZ LOPEZ; JOSE JULIAN GOMEZ LOPEZ, Agency Nos. A208-124-476 A208-124-477 Petitioners, A208-124-478

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

Respondent.

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

Submitted August 17, 2023** San Francisco, California

Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,*** District Judge.

Norma Angelica Lopez Ceja and her two minor sons, natives and citizens 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). *** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”)

decision dismissing an appeal from an Immigration Judge’s (“IJ”) decision

denying Lopez Ceja’s application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).1 We have jurisdiction

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

1. The initial notices to appear did not include the place, date, and time

of the initial hearing. These omissions did not deprive the immigration court of

jurisdiction over the removal proceedings. In United States v. Bastide-Hernandez,

39 F.4th 1187 (9th Cir. 2022) (en banc), we held that a defective initial notice to

appear did not deprive the immigration court of authority to act and did not divest

the immigration court of subject-matter jurisdiction when the notice was later

supplemented with the missing information. Id. at 1188, 1193 & n.9. Here,

supplemental notices were served, and Lopez Ceja attended the hearings.

2. Lopez Ceja waived her claim that an exception to the one-year

deadline for filing an asylum application excused her untimely filing. See 8 U.S.C.

§ 1158(a)(2)(B); 8 C.F.R. § 1208.4(a). The IJ found the asylum application

untimely. Lopez Ceja argues that the BIA should have remanded to the IJ to

determine whether a changed or extraordinary circumstance excused the untimely

1 Lopez Ceja’s sons were derivative applicants on her application for asylum. See 8 U.S.C. § 1158(b)(3)(A).

2 filing of her asylum application. Although Lopez Ceja mentioned an erroneous

decision on the timeliness issue in her notice of appeal to the BIA, she abandoned

this issue by not including any argument about it in her brief in that forum. See

Abebe v. Mukasey, 554 F.3d 1203, 1207–08 (9th Cir. 2009) (en banc). Lopez Ceja

could have presented the claim she makes here to the BIA, but she failed to do so.

Lopez Ceja’s failure to present her claim regarding an exception to the filing

deadline to the BIA does not deprive this court of jurisdiction. See Santos-Zacaria

v. Garland, 143 S. Ct. 1103, 1116 (2023). But Lopez Ceja waived review of this

claim by failing to present it to the BIA. See id. (holding that, although 8 U.S.C.

§ 1252(d)(1)’s exhaustion requirement is not jurisdictional, it is still subject to the

rules regarding waiver and forfeiture).

3. Substantial evidence supports the agency’s adverse credibility

determination. See Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014)

(discussing standard of review of a credibility determination). The agency

properly relied on Lopez Ceja’s omission from her asylum application of the death

threats against her, her children, and the children’s father that formed the basis for

her claim for relief. These omissions were not mere details but new allegations

that told a more compelling story of persecution. See Silva-Pereira v. Lynch, 827

F.3d 1176, 1185–86 (9th Cir. 2016). And in view of Lopez Ceja’s testimony that

she moved to her aunt’s house to escape the death threats and lived there until she

3 went to the United States, the omission of her aunt’s address from her application

further supports the adverse credibility determination.

The IJ was not required to credit Lopez Ceja’s explanation for her omission

of these material facts. See Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th

Cir. 2010). Without credible testimony, the BIA appropriately concluded that

Lopez Ceja’s withholding of removal claim failed because she did not point to

other record evidence to independently establish eligibility for relief.2 See Garcia,

749 F.3d at 789.

4. Substantial evidence supports the denial of Lopez Ceja’s CAT claim.

While an adverse credibility determination alone does not “necessarily defeat a

CAT claim,” Garcia, 749 F.3d at 791, Lopez Ceja was required to point to other

documentary evidence to meet her burden of demonstrating that it is more likely

than not that she will be tortured by or with the acquiescence of any government

official if removed to Mexico. See id. She failed to do so. See id.

PETITION DENIED.

2 We do not reach Lopez Ceja’s arguments regarding past and future persecution, her proposed social group, or nexus. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1075 (9th Cir. 2020) (“Our review is limited to those grounds explicitly relied upon by the [BIA].” (alteration in original) (quoting Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016))).