Regaldo-Recino v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2023
• Docket: 22-686
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBER REGALDO-RECINO, No. 22-686 Agency No. Petitioner, A077-444-226 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 20, 2023** Phoenix, Arizona

Before: TALLMAN, OWENS, and BADE, Circuit Judges.

Rober Regaldo-Recino (“Petitioner”), a native and citizen of Guatemala,

petitions for review of the Board of Immigration Appeals’ (“BIA”) streamlined

affirmance of an immigration judge’s (“IJ”) decision denying his application for

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

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). As the

* 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). parties are familiar with the facts, we do not recount them here. We dismiss in

part and deny in part the petition.

“Where, as here, the BIA summarily adopts the IJ’s decision without

opinion pursuant to 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as if it

were the BIA’s decision.” Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir.

2023) (internal quotation marks and citation omitted). “We review

jurisdictional and legal questions in the context of immigration proceedings de

novo.” Rivera Vega v. Garland, 39 F.4th 1146, 1152 (9th Cir. 2022). By

contrast, “[w]e review factual findings made as to [a petitioner’s] CAT claim

for substantial evidence.” Lopez v. Sessions, 901 F.3d 1071, 1074 (9th Cir.

2018). “Under [the substantial evidence] standard, we must uphold the agency

determination unless the evidence compels a contrary conclusion.” Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).

1. As an initial matter, we do not review the IJ’s adverse credibility and

statutory ineligibility determinations because Petitioner failed to exhaust these

issues before the BIA and waived them before this court. “Exhaustion, as set

forth in 8 U.S.C. § 1252(d)(1), is jurisdictional and therefore generally bars us,

for lack of subject-matter jurisdiction, from reaching the merits of a legal claim

not presented in administrative proceedings below.” Honcharov v. Barr, 924

F.3d 1293, 1296 n.2 (9th Cir. 2019) (per curiam) (internal quotation marks and

citation omitted). Additionally, where a petitioner fails to contest an issue in

2 22-686 their opening brief, the issue is deemed waived. Corro-Barragan v. Holder,

718 F.3d 1174, 1177 n.5 (9th Cir. 2013).

Here, Petitioner’s brief before the BIA, which was prepared by counsel,

raised only the issue of whether Petitioner established a prima facie case for

CAT protection; it made no mention of the IJ’s adverse credibility or statutory

ineligibility determinations. Likewise, neither Petitioner’s opening brief nor

reply brief before this court challenges the adverse credibility or statutory

ineligibility determinations. Accordingly, Petitioner has failed to exhaust and

waived both issues, precluding our review.

2. Substantial evidence supports the agency’s finding that Petitioner

failed to establish the elements of his CAT claim. To receive CAT protection,

Petitioner must demonstrate that he is more likely than not to experience torture

if returned to Guatemala and that the torture will occur by or with the

acquiescence of a public official. Aguilar-Ramos v. Holder, 594 F.3d 701, 704

(9th Cir. 2010). “Absent credible testimony, [a petitioner’s] CAT claim rests on

country conditions reports and other corroborating evidence in the record [such

as] letters from his family and acquaintances.” Mukulumbutu v. Barr, 977 F.3d

924, 927 (9th Cir. 2020).

Here, because of the adverse credibility determination, Petitioner’s CAT

claim rests only on country reports, news articles, and his partner’s testimony

about the threatening messages she recently received. Although the country

reports provide general evidence of crime and corruption in Guatemala, they do

3 22-686 not demonstrate that it is more likely than not that Petitioner will personally be

tortured if he returns. See id. at 928. In fact, Petitioner admitted that he has

never been physically harmed by gangs in Guatemala and has told immigration

officers multiple times that he has “no personal problems” in Guatemala and

“no fear” of returning there. The record evidence is insufficient to compel a

finding of a likelihood of future torture.

Nor does the record compel a finding of governmental acquiescence.

As the country reports indicate, the Guatemalan government has created the

“Presidential Commission against Corruption” to fight widespread corruption.

Evidence that a government is taking measures to combat crime and violence,

even if not successfully, supports a finding that the government is not willfully

blind. See Garcia-Milian v. Holder, 755 F.3d 1026, 1035 (9th Cir. 2014).

Moreover, Petitioner admitted that the police opened investigations after his

family reported the deaths of his cousins. “Evidence that the police were aware

of a particular crime, but failed to bring the perpetrators to justice, is not in itself

sufficient to establish acquiescence in the crime.” Id. at 1034. Accordingly, the

evidence does not compel a conclusion that Petitioner established the elements

of his CAT claim.

The stay of removal remains in place until the mandate issues.

PETITION DISMISSED IN PART; DENIED IN PART.

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