Salas Contreras v. McHenry

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 29 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILBER SALAS No. 23-4468 CONTRERAS; ZENAIDA ESTEBAN Agency Nos. BERRIOS; MATIAS ANDRE SALAS A240-845-393 ESTEBAN, A240-845-391 A240-845-392 Petitioners,

v. MEMORANDUM**

JAMES R. MCHENRY III, Acting Attorney General,*

Respondent.

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

Submitted January 16, 2025*** Pasadena, California

Before: RAWLINSON and M. SMITH, Circuit Judges, and RAKOFF, District

* James R. McHenry III is substituted for his predecessor, Merrick B. Garland, as Acting United States Attorney General pursuant to Federal Rule of Appellate Procedure 43(c)(2). ** 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). Judge.****

Wilber Salas Contreras (Salas Contreras), a native and citizen of Peru,

petitions for review of a decision of the Board of Immigration Appeals (BIA)

dismissing his appeal of the denial by an Immigration Judge (IJ) of his applications

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

Torture (CAT).1 We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition for review.

“We review denials of asylum, withholding of removal, and CAT relief for

substantial evidence.” Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022)

(citation, alteration, and internal quotation marks omitted). “[Factual] findings are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary. . . .” Id. (citation and internal quotation marks omitted).

Salas Contreras has not exhausted his challenge to the IJ’s determination that

he “failed to demonstrate past persecution.” On appeal to the BIA, Salas Contreras

only challenged the IJ’s conclusion that there was no nexus between any

persecution and a protected ground. “Exhaustion requires a non-constitutional

legal claim to the court on appeal to have first been raised in the administrative

**** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1 Zenaida Esteban Berrios and Matias Andre Salas Esteban are derivative applicants, also natives and citizens of Peru.

2 23-4468 proceedings below, and to have been sufficient to put the BIA on notice of what

was being challenged. . . .” Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th

Cir. 2023), as amended (citation omitted). Exhaustion is “mandatory in the sense

that a court must enforce the rule if a party properly raises it,” Suate-Orellana v.

Garland, 101 F.4th 624, 629 (9th Cir. 2024) (citation, alteration, and internal

quotation marks omitted), and the government has.2

Additionally, the BIA determined that Salas Contreras did not “meaningfully

dispute” the IJ’s determination that he could safely relocate to another part of Peru

to avoid future persecution. See 8 C.F.R. § 1208.13(b). During his removal

proceedings, Salas Contreras testified that he did not experience any harm when he

moved to a different area from where the attack occurred. “By failing to show

either past personal persecution or that it would be unreasonable to expect him to

relocate to avoid future persecution, [Salas Contreras] failed to provide evidence to

compel reversal of the BIA’s decisions to deny asylum and withholding of

removal.” Hussain v. Rosen, 985 F.3d 634, 649 (9th Cir. 2021) (citation omitted).3

2 Contrary to Salas Contreras’ contentions, the BIA sufficiently explained its rejection of Salas Contreras’ asylum and withholding of removal claims. 3 Although Salas Contreras challenges other aspects of the IJ’s denial of asylum and withholding of removal, the BIA stated that its nexus and relocation determinations were dispositive and did not consider Salas Contreras’ “remaining appellate arguments.” “Our review is limited to the BIA’s decision,” and we do not address Salas Contreras’ additional contentions. Corpeno-Romero v. Garland, 120 F.4th 570, 577 (9th Cir. 2024) (citation omitted).

3 23-4468 Substantial evidence also supports the BIA’s denial of CAT relief. “As an

applicant for CAT relief, [Salas Contreras] must prove that it is more likely than

not that he would be tortured if removed to the proposed country and that torture

must be inflicted by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity. . . .” Edgar G.C. v.

Garland, 109 F.4th 1230, 1242 (9th Cir. 2024) (citation, alterations, and internal

quotation marks omitted). Salas Contreras’ testimony and supporting

documentation do not compel a finding that he or his family were subjected to past

torture or that “it is more likely than not that he would be tortured . . . with the

consent or acquiescence of a public official or other person acting in an official

capacity.” Id. (citation and alteration omitted).4

PETITION DENIED.

4 The temporary stay of removal continues until the mandate issues. The motion for stay of removal is otherwise denied.

4 23-4468