Ovedo-Chavez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2025
• Docket: 21-145
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS OVEDO-CHAVEZ, No. 21-145 Agency No. Petitioner, A098-696-795 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted March 24, 2025 Phoenix, Arizona

Before: BERZON and BENNETT, Circuit Judges, and TUNHEIM, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. Petitioner Carlos Juan Ovedo-Chavez 1 is a native and citizen of Mexico. He

challenges the Bureau of Immigration Affairs’s (“BIA”) order of removal, in which

the BIA affirmed the immigration judge’s (“IJ”) decision denying his application for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). Ovedo-Chavez also petitions for remand to the BIA for

consideration of cancellation of removal.

We have jurisdiction under 8 U.S.C. § 1252. Because the Agency adopted the

IJ’s analysis by citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), “we

review both the [Agency] and IJ’s decisions.” Posos-Sanchez v. Garland, 3 F.4th

1176, 1182 (9th Cir. 2021). Denials of asylum, withholding of removal, and CAT

protection are reviewed for substantial evidence. Duran-Rodriguez v. Barr, 918

F.3d 1025, 1028 (9th Cir. 2019). We deny in part and grant in part Ovedo-Chavez’s

petition and remand.

1. The IJ made an adverse credibility finding against Ovedo-Chavez. Ovedo-

Chavez did not challenge this determination before the BIA and does not challenge

this determination on appeal. Ovedo-Chavez has therefore waived any such

argument. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir. 1996). There

1 On appeal, Petitioner notes that his name is properly spelled “Oviedo-Chavez” and that he informed the immigration judge of the transcription error, which was not corrected. To avoid confusion, we use the misspelled name used throughout the administrative record, but the agency should consider correcting this misspelling on remand.

2 21-145 is no “sufficient” evidence to “support” Ovedo-Chavez’s asylum and withholding

claims “independent[]” of his testimony. Garcia v. Holder, 749 F.3d 785, 791 (9th

Cir. 2014). The adverse credibility finding is thus dispositive as to both the asylum

and withholding of removal claims. See Farah v. Ashcroft, 348 F.3d 1153, 1156

(9th Cir. 2003).

2. Substantial evidence supports the Agency’s denial of CAT protection.

Although Ovedo-Chavez presents evidence of general human rights abuses in

Mexico, he fails to present evidence that would compel the conclusion that the

Mexican government would acquiesce to his torture by cartel members. See

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general

ineffectiveness on the government’s part to investigate and prevent crime will not

suffice to show acquiescence.”).

3. Ovedo-Chavez argues that his order of removal should be remanded to the

IJ to consider cancellation of removal. Ovedo-Chavez did not present this claim

before the IJ or the BIA. Ordinarily, we would not review this claim because it was

not exhausted, and the government duly raised that problem in its brief. See 8 U.S.C.

§ 1252(d)(1); Suate-Orellana v. Garland, 101 F.4th 624, 629 (9th Cir. 2024)

(explaining that, per recent Supreme Court precedent, the exhaustion requirement is

a non-jurisdictional claim-processing rule that we must enforce if a party properly

raises it). But Ovedo-Chavez’s failure to exhaust is excused because it would have

3 21-145 been futile to bring his claim. See Vasquez-Rodriguez v. Garland, 7 F.4th 888, 896

(9th Cir. 2021).

At the time of Ovedo-Chavez’s merits hearing and his appeal to the BIA, the

stop-time rule halted Ovedo-Chavez’s accumulation of physical presence at the time

his notice to appear was served, Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 442

(BIA 2018), because a deficient notice to appear could be cured by a subsequent,

complete hearing notice, see In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529

(BIA 2019) (en banc). On February 23, 2015, Ovedo-Chavez received a deficient

notice to appear. On March 19, 2015, Ovedo-Chavez received a second and

complete notice to appear. At the time of Ovedo-Chavez’s appeal, it would have

been futile for him to argue for cancellation of removal, because he reentered the

country on February 26, 2005, less than ten years after he had been served with the

first (deficient) notice to appear.

The BIA rejected Ovedo-Chavez’s appeal on April 28, 2021. The next day,

the Supreme Court issued its decision in Niz-Chavez v. Garland, 593 U.S. 155

(2021), which held that the stop-time rule applied only when a noncitizen received

a notice to appear with all the required information. Id. at 160–61.

The Government argues that there was no futility because this court

considered the issue after Ovedo-Chavez filed his appeal but before the BIA

dismissed that appeal. The Government cites Lopez v. Barr, 925 F.3d 396 (9th Cir.

4 21-145 2019) to support its position that applying for cancellation would not have been futile

as we had rejected the two-part curing process established in In re Mendoza-

Hernandez. See id. at 405. But Lopez was vacated on January 23, 2020, when we

took the issue en banc, 948 F.3d 989 (9th Cir. 2020). We assess futility at the time

of briefing before the BIA. See Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004)

(“We do not require an alien to exhaust administrative remedies on legal issues based

on events that occur after briefing to the BIA has been completed.”). When Ovedo-

Chavez filed his BIA brief on April 16, 2019, it would have been futile for him to

have sought cancellation of removal.

Because Ovedo-Chavez’s failure to exhaust is excused for futility and because

the Agency has not considered Ovedo-Chavez’s claim for cancellation of removal,

we grant the Petition in part and remand to the agency for consideration of

cancellation of removal in the first instance. See Suate-Orellana, 101 F.4th at 627

(remanding to the agency for consideration of Niz-Chavez in the first instance after

the petitioner moved to reopen without invoking Niz-Chavez).

We DENY the petition for review as to asylum, withholding of removal, and

CAT relief, and GRANT the Petition in part and REMAND the cancellation of

removal claim to the BIA for consideration in the first instance. The parties shall

bear their own costs on appeal.

PETITION DENIED IN PART; GRANTED IN PART; AND REMANDED.

5 21-145