Sanchez Aguilar v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2023
• Docket: 22-421
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JACQUELINE OTILA SANCHEZ- No. 22-421 AGUILAR, Petitioner, Agency No. A208-601-707

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 6, 2023** Pasadena, California

Before: M. SMITH, LEE and VANDYKE, Circuit Judges

Jacqueline Sanchez-Aguilar, a native and citizen of El Salvador, seeks review

of an order by the Board of Immigration Appeals (BIA) dismissing her appeal from

an Immigration Judge’s (IJ) denial of her applications for asylum, withholding of

* 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). removal, and protection under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C § 1252(a)(1), and we deny the petition.

Sanchez-Aguilar applied for admission to the United States at the Ota Mesa,

California, port of entry lacking a valid visa, passport, or other entry documentation.

The Department of Homeland Security charged her with removability under 8

U.S.C. § 1182(a)(7)(A)(i)(I). Sanchez-Aguilar conceded the charge and filed

applications for asylum, withholding of removal, and protection under CAT. The IJ

denied all three applications in an oral decision. Sanchez-Aguilar then appealed the

IJ’s decision to the BIA, which dismissed her appeal.

1. Asylum and withholding of removal claims. Sanchez-Aguilar’s asylum

and withholding of removal claims necessarily fail because she waived any

challenge to the IJ’s finding that she did not establish that Salvadoran government

officials were, or would be, unable or unwilling to control her alleged persecutors.

First, she failed to raise and thus exhaust this issue before the BIA. See Santos-

Zacaria v. Garland, 143 S. Ct. 1103, 1116 (2023) (holding that, although 8 U.S.C.

§ 1252(d)(1)’s exhaustion requirement is not jurisdictional, it is still subject to the

rules regarding waiver and forfeiture). Second, she has not raised this issue before

us, either. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013)

(where petitioner fails to contest an issue in her opening brief, the issue is deemed

waived). We thus deny her asylum and withholding of removal claims.

2 Alternatively, the BIA did not err in upholding the IJ’s denial of asylum and

withholding of removal claims because substantial evidence supports the BIA’s

finding that Sanchez-Aguilar failed to establish membership in her proposed

particular social group comprised of “persons who testified against gang members.”

Sanchez-Aguilar relies upon Henriquez-Rivas v. Holder, in which we held that

witnesses who testified in open court against gang members in El Salvador may

constitute a cognizable particular social group. 707 F.3d 1081, 1092 (9th Cir. 2013)

(en banc). Sanchez-Aguilar, however, concedes that she never in fact testified in

open court against gang members.

2. CAT. “To establish entitlement to protection under CAT, an applicant

must show ‘it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.’” Plancarte Sauceda v. Garland, 23 F.4th 824,

834 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.16(c)(2)). “The torture must be

‘inflicted by, or at the instigation of, or with the consent or acquiescence of, a public

official acting in an official capacity or other person acting in an official capacity.’”

Id. (quoting 8 C.F.R. § 1208.18(a)(1)).

Substantial evidence supports the agency’s denial of CAT relief on the

grounds that Sanchez-Aguilar failed to establish a likelihood that she would be

tortured in El Salvador upon her return and that the Salvadoran government would

acquiesce to such conduct. See Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir.

3 2021) (noting that a “speculative fear of torture is not sufficient to satisfy the

applicant’s burden” for protection under CAT). The BIA considered conditions in

El Salvador as evidence but found them insufficient to establish a particularized

threat of torture. The record does not compel a contrary conclusion. See Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010); Dhital v. Mukasey, 532 F.3d

1044, 1051–52 (9th Cir. 2008).

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

motion for a stay of removal is otherwise denied. PETITION DENIED.