Elder De Los Santos v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELDER DE LOS SANTOS, No. 20-71235
Petitioner, Agency No. A201-906-319
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2022**
Phoenix, Arizona
Before: MURGUIA, Chief Judge, and O’SCANNLAIN and GRABER, Circuit
Judges.
Petitioner Elder Gudiel De Los Santos-Perez, a native and citizen of
Guatemala, timely seeks review of the Board of Immigration Appeals’ ("BIA")
dismissal of his appeal from an immigration judge’s ("IJ") denial of relief from
*
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 the IJ’s entry of a final order of removal. Reviewing questions of law
de novo, and reviewing for substantial evidence the agency’s factual findings,
Flores-Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021), we deny the
petition.
1. We decline to exercise our discretion to reach Petitioner’s arguments
pertaining to asylum. Petitioner forfeited the arguments by failing to raise them in
his opening brief. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Contrary
to Petitioner’s contention in the reply brief, no manifest injustice results, and no
other exception to forfeiture applies.
2. Substantial evidence supports the BIA’s denial of withholding of
removal. The BIA permissibly concluded that Petitioner failed to show that the
government was unable or unwilling to control the persons who might harm him.
See Meza-Vazquez v. Garland, 993 F.3d 726, 729 (9th Cir. 2021) ("A
government’s inability or refusal to protect against persecution is a core
requirement for withholding of removal."). Neither the excerpt of the country
report cited by Petitioner nor any other evidence in the record compels the
conclusion that the agency erred.
3. Substantial evidence likewise supports the agency’s denial of protection
under the Convention Against Torture. See B.R. v. Garland, 4 F.4th 783, 800–01
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(9th Cir. 2021) (describing the petitioner’s burden of establishing governmental
acquiescence when seeking relief under the Convention Against Torture).
4. We reject Petitioner’s argument that the IJ violated his right to due
process. We have carefully reviewed the record, and we see neither unfairness nor
substantial prejudice. See Rodriguez-Jimenez v. Garland, 20 F.4th 434, 440 (9th
Cir. 2021) ("To prevail on a due process challenge to deportation proceedings, an
alien must show error and substantial prejudice." (brackets omitted) (citation
omitted)).
Petition DENIED.
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