Oraliz Villatoro Claros v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 2, 2023
• Docket: 22-1615
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1615

ORALIZ SARAI VILLATORO CLAROS,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted: September 28, 2023 Decided: October 2, 2023

Before NIEMEYER, THACKER, and RUSHING, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ON BRIEF: W. Steven Smitson, Columbia, Maryland, for Petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Jonathan A. Robbins, Assistant Director, Zoe J. Heller, Senior Litigation Counsel, Office of Immigraiton Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1615 Doc: 39 Filed: 10/02/2023 Pg: 2 of 4

PER CURIAM:

Oraliz Sarai Villatoro Claros (Villatoro), a native and citizen of Honduras, petitions

for review of an order of the Board of Immigration Appeals dismissing her appeal from the

immigration judge’s oral decision denying Villatoro’s applications for asylum and

withholding of removal. We deny the petition for review.

Here, the Board held that Villatoro waived review of the immigration judge’s

primary alternative ruling—to wit: that Villatoro failed to establish that the Honduran

government is unable or unwilling to control her private-actor persecutor, see Portillo

Flores v. Garland, 3 F.4th 615, 626, 632-37 (4th Cir. 2021) (en banc) (discussing three

elements of an asylum claim, particularly the “government control element”)—by failing

to address that aspect of the immigration judge’s decision in her administrative appeal

brief. Because that ruling was independently dispositive of the applications for asylum and

withholding of removal, the Board declined to reach the issue that Villatoro did raise in the

administrative appeal, which related to the immigration judge’s social group analysis, and

affirmed the immigration judge’s denial of relief on the alternative basis. Villatoro does

not address these aspects of the Board’s decision in her brief in this court. Accordingly,

we hold that these issues are waived. ∗ See Fed. R. App. P. 28(a)(8)(A); see also Grayson

O Co. v. Agadir Int’l, LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument

∗ Villatoro has also waived review of the immigration judge’s denial of her claim for relief under the Convention Against Torture (CAT), which likewise was not raised in the administrative appeal and similarly is not raised in the brief submitted to this court. See Cortez-Mendez v. Whitaker, 912 F.3d 205, 208 (4th Cir. 2019) (explaining that petitioner’s failure to address the denial of CAT relief waives the issue).

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by failing to present it in its opening brief or by failing to develop its argument—even if

its brief takes a passing shot at the issue.” (internal quotation marks and brackets omitted)).

And while Villatoro does present an extensive argument related to the immigration judge’s

social group analysis, that argument is not properly before us for review because the Board

specifically declined to address that aspect of the immigration judge’s ruling and, thus, did

not rely on that rationale to affirm the order of removal. See Arita-Deras v. Wilkinson, 990

F.3d 350, 356 (4th Cir. 2021) (explaining that, “[w]hen the Board adopts the analysis used

by the IJ [and] supplements it with its own reasoning, we review both decisions,” but that

“we limit our consideration of the IJ’s [decision] to the portions that have been adopted

and incorporated into the Board’s decision” (internal quotation marks omitted)).

Next, Villatoro repeats her challenge to the agency’s jurisdiction over her removal

proceedings based on the Department of Homeland Security’s failure to identify the place,

time, and date of her initial hearing in the charging Notice to Appear. However, as the

Board explained, this argument is foreclosed by circuit precedent. See United States v.

Cortez, 930 F.3d 350, 358-66 (4th Cir. 2019) (holding that a Notice to Appear’s failure to

include the date or time of the hearing does not implicate the immigration court’s

jurisdiction or adjudicative authority); see also United States v. Vasquez Flores, No. 19-

4190, 2021 WL 3615366, at *2 n.3 (4th Cir. Aug. 16, 2021) (argued but unpublished)

(reaffirming Cortez after considering Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)).

Finally, Villatoro asks that we remand this matter to allow for the exercise of

prosecutorial discretion. However, it is clear from the Attorney General’s later filing with

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this court that Villatoro’s request for prosecutorial discretion has been considered and

rejected. Accordingly, we decline Villatoro’s request for remand.

For these reasons, we deny the petition for review. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

PETITION DENIED