Servellon-Hernandez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 8, 2024
• Docket: 24-390
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LORENA SERVELLON- No. 24-390 HERNANDEZ; KENIA ALVARENGA- Agency Nos. SERVELLON, A220-602-323 A220-960-266 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 6, 2024** Phoenix, Arizona

Before: PAEZ, BERZON, and OWENS, Circuit Judges.

Lorena Servellon-Hernandez and her derivative beneficiary minor child,

Kenia Alvarenga-Servellon, natives and citizens of El Salvador, petition for review

* 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). of the Board of Immigration Appeals’ (“BIA”) dismissal of their appeal from the

immigration judge’s (“IJ”) decision denying their applications for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). “Where, as here, the BIA has reviewed the IJ’s decision and

incorporated portions of it as its own, we treat the incorporated parts of the IJ’s

decision as the BIA’s.” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021)

(citation omitted). “In reviewing the BIA’s decisions, we consider only the

grounds relied upon by that agency.” Id. “We review factual findings, including

adverse credibility determinations, for substantial evidence.” Iman v. Barr, 972

F.3d 1058, 1064 (9th Cir. 2020). As the parties are familiar with the facts, we do

not recount them here. We deny the petition for review.

1. In denying the asylum and withholding of removal claims, the BIA relied

solely on its affirmance of the IJ’s adverse credibility determination. Before this

court, Servellon-Hernandez fails to dispute the inconsistencies and lack of detail in

her testimony that the agency relied upon to find her not credible. Therefore, she

has waived review of the agency’s adverse credibility determination and forfeited

her claims for asylum and withholding of removal. See Cui v. Garland, 13 F.4th

991, 999 n.6 (9th Cir. 2021) (holding petitioner waived issue for which she made

no substantive argument in her opening brief).

2 24-390 2. The agency denied Servellon-Hernandez CAT protection because of the

adverse credibility determination and her failure to provide documentary evidence

independently establishing her eligibility. As noted above, Servellon-Hernandez

does not meaningfully address the agency’s adverse credibility determination. In

addition, substantial evidence supports the agency’s determination that the country

conditions evidence did not independently establish Servellon-Hernandez’s

eligibility for CAT protection. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152

(9th Cir. 2010) (per curiam) (stating that “generalized evidence of violence and

crime . . . is not particular to [the petitioners] and is insufficient to meet” the CAT

standard).

3. Servellon-Hernandez argues that the IJ violated her due process right to

impartiality by failing to act as a neutral factfinder. We decline to consider

Servellon-Hernandez’s due process argument because she failed to exhaust this

issue. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (noting

that administrative exhaustion under 8 U.S.C. § 1252(d)(1), while not

jurisdictional, is a claim-processing rule that the court “must enforce” when it is

“properly raise[d]” (citation omitted)); see also Sola v. Holder, 720 F.3d 1134,

1135-36 (9th Cir. 2013) (per curiam) (explaining that while constitutional

challenges are generally excepted from exhaustion, exhaustion applies to due

3 24-390 process claims concerning alleged procedural errors that the BIA could have

addressed).

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

PETITION FOR REVIEW DENIED.

4 24-390