Ruth Martinez-Rodas v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 17, 2022
• Docket: 22-1220
• Status: Unpublished

Opinion

USCA4 Appeal: 22-1220 Doc: 18 Filed: 10/17/2022 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1220

RUTH KEAN MARTINEZ-RODAS,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted: October 13, 2022 Decided: October 17, 2022

Before NIEMEYER and AGEE, Circuit Judges, and KEENAN, Senior Circuit Judge.

Petition denied in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Nash Fayad, FAYAD LAW, P.C., Richmond, Virginia, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Jessica E. Burns, Senior Litigation Counsel, John F. Stanton, Trial Attorney, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1220 Doc: 18 Filed: 10/17/2022 Pg: 2 of 3

PER CURIAM:

Ruth Kean Martinez-Rodas (Martinez), a native and citizen of El Salvador, petitions

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

immigration judge’s oral decision denying Martinez’s applications for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT). We deny the

petition for review in part and dismiss it in part.

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

alternative, dispositive ruling—to wit: that Martinez failed to establish that the Salvadoran

government is unable or unwilling to control her alleged persecutors, 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

specifically address that aspect of the immigration judge’s holding in her administrative

appeal brief. Because this ruling was dispositive of the applications for asylum and

withholding of removal, the Board declined to reach the substantive issues that Martinez

did raise in the administrative appeal and affirmed the immigration judge’s denial of relief

on this basis.

Upon consideration of the arguments Martinez presses on appeal in conjunction

with the administrative record, we discern no error in the Board’s application of its

procedural waiver rule in this context. See In re D-G-C-, 28 I. & N. Dec. 297, 297 n.1

(B.I.A. 2021) (explaining Board’s procedural rule that issues an applicant does “not

meaningfully challenge[ ]” on appeal will be deemed waived); accord Pinos-Gonzalez v.

Mukasey, 519 F.3d 436, 440-41 (8th Cir. 2008) (finding no error in Board’s application of

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procedural waiver to applicant). Martinez also assigns error to the Board’s holding that

she waived her due process challenge to the immigration judge’s failure to record her

witness’s testimony. Upon review, we agree with the Board that the alleged due process

claim is foreclosed by Martinez’s acceptance of the ameliorative action taken by the

immigration judge when the transcription issue arose. Accordingly, we deny the petition

for review in part for the reasons stated by the Board. See In re Martinez-Rodas (B.I.A.

Feb. 7, 2022).

Finally, we observe that Martinez raises several other arguments in this court that

relate to the immigration judge’s denial of her claims for asylum, withholding of removal,

and protection under the CAT. We agree with the Attorney General that we lack

jurisdiction to consider these claims because they were not raised on appeal to the Board

and, thus, were not administratively exhausted. See 8 U.S.C. § 1252(d)(1); Cabrera v.

Barr, 930 F.3d 627, 631 (4th Cir. 2019) (“[W]hen a petition contains an argument that has

never been presented to the [Board] for consideration, we lack jurisdiction to consider it

even if other arguments in the petition have been exhausted.”). As such, we dismiss the

remainder of the petition for lack of jurisdiction.

Accordingly, we deny in part and dismiss in part Martinez’s 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 IN PART AND DISMISSED IN PART