Vilma Santos Diaz v. Jefferson Sessions

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VILMA LETICIA SANTOS DIAZ, No. 15-73452

Petitioner, Agency No. A200-824-042

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted July 10, 2018**

Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

Vilma Leticia Santos Diaz, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal

from an immigration judge’s decision denying her application for withholding of

removal, relief under the Convention Against Torture (“CAT”), and administrative

* 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). closure. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d 1066, 1070

(9th Cir. 2008). We deny in part and grant in the petition for review.

In her opening brief, Santos Diaz fails to challenge the agency’s dispositive

determination that she failed to establish changed or extraordinary circumstances

to excuse her untimely asylum application. See Martinez-Serrano v. INS, 94 F.3d

1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not supported by

argument are deemed abandoned.”). Thus, her asylum claim fails.

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

Santos Diaz failed to show it is more likely than not that she would be tortured by

or with the consent or acquiescence of the government of Guatemala. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

Santos Diaz points to no error in the agency’s denial of administrative

closure.

We reject Santos Diaz’s contention that the BIA violated due process by

failing to rule on her “motion to remand” as raised in her appeal brief to the BIA.

See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice

to prevail on a due process claim).

2 15-73452 As to Santos Diaz’s withholding of removal claim, this court’s decision in

Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017), came down after the

BIA’s decision. Thus, we grant the petition for review as to withholding of

removal, and remand this claim to the BIA to determine the impact, if any, of this

decision. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part; and

REMANDED.

3 15-73452