Osorio Claros v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 7, 2023
• Docket: 21-1272
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 7 2023

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

ANDREA MARGARITA OSORIO No. 21-1272 CLAROS and JUAN CARLOS HERNANDEZ OSORIO, Agency Nos. A208-456-487 A208-456-488 Petitioners, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 3, 2023**

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

Andrea Margarita Osorio Claros, a citizen of El Salvador, seeks review of the

Board of Immigration Appeals’ (“BIA”) denial of her appeal from an Immigration

Judge’s (“IJ”) order denying her and her son’s1 application for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). This court

* 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)(C). 1 Juan Carlos Hernandez Osorio (A208-456-488) is a minor rider petitioner. has jurisdiction under 8 U.S.C. § 1252 and denies the petition.

1. The BIA properly found that Osorio Claros did not challenge the IJ’s

determination that she failed to show that El Salvador was unable or unwilling to

control her ex-partner. In order to qualify for asylum, an applicant has the burden

of establishing past persecution or a well-founded fear of future persecution, either

by the government or by forces that the government is unable or unwilling to control.

Villegas v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021). “To be eligible for

withholding of removal the petitioner must discharge this burden by a ‘clear

probability.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021).

The BIA determined that Osorio Claros failed to challenge the IJ’s finding

that she did not demonstrate that the government of El Salvador is unable or

unwilling to control the father of her son, the source of her alleged persecution.

Because the BIA found that Osorio Claros forfeited that dispositive issue, it declined

to address (1) whether she credibly testified and adequately corroborated her claim

or (2) whether she established that she was harmed in the past or would be persecuted

in the future on account of either a cognizable protected group or a qualifying

political opinion.

The record supports the BIA’s determination. Osorio Claros’s brief to the

BIA did not argue that the Salvadoran government would be unable or unwilling to

control her son’s father. Osorio-Claros thus has not shown that the BIA erred in

2 deeming this issue forfeited, and we therefore conclude that it is unexhausted. See

Alanniz v. Barr, 924 F.3d 1061, 1068–69 (9th Cir. 2019); see also Amaya v. Garland,

15 F.4th 976, 986 (9th Cir. 2021).

Because this issue decides Osorio Claros’s eligibility for asylum and

withholding of removal, we deny her petition as to these claims.

2. Osorio Claros failed to challenge the basis of the BIA’s decision as to

her eligibility for protection under the CAT. The BIA denied Osorio Claros’s

application for protection under the CAT on similar grounds, finding that Osorio

Claros provided only conclusory statements about her eligibility. Osorio Claros has

not provided this court with any substantive arguments to show that the BIA’s

findings were erroneous.

PETITION DENIED.