Edher Lopez-Araisa v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION
FEB 13 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDHER LOPEZ-ARAISA, No. 20-72860
Petitioner, Agency No. A214-014-476
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2023**
Phoenix, Arizona
Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.
Edher Lopez-Araisa petitions for review of a Board of Immigration Appeals’
(BIA) order dismissing his appeal from an Immigration Judge’s (IJ) decision
denying his motion to terminate and his 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). Our
jurisdiction arises under 8 U.S.C. § 1252, and we deny in part and dismiss in part
the petition for review.
1. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), Lopez-Araisa argues
that the agency erred by denying his motion to terminate his removal proceedings
because his defective Notice to Appear (NTA) deprived the agency of jurisdiction
to enter a removal order. Though Lopez-Araisa’s NTA did not provide a time or
date, the Department of Homeland Security later sent Lopez-Araisa notices of
hearing that specified the time and date of his removal proceedings. Lopez-
Araisa’s argument is therefore foreclosed by our decision in United States v.
Bastide-Hernandez, which held that “the failure of an NTA to include time and
date information does not deprive the immigration court of subject matter
jurisdiction.” 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc), cert. denied, No. 22-
6281, 2023 WL 350056 (U.S. Jan. 23, 2023).
2. We dismiss the petition for review to the extent that it challenges the
denial of asylum and withholding of removal because Lopez-Araisa did not dispute
before the BIA the IJ’s adverse credibility finding, untimeliness determination, or
finding of a lack of corroboration, and the BIA considered those issues waived as a
result. Lopez-Araisa argues that we can reach these issues nevertheless because
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the BIA, citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994), stated that it
agreed with the IJ’s reasoning and adopted and affirmed the IJ’s decision. When,
as here, the BIA explicitly declines to reach an unexhausted issue, we interpret the
BIA’s citation to Burbano to incorporate only the portions of the IJ’s decision that
the BIA decided on the merits. See Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th
Cir. 2005) (en banc) (considering exhaustion requirement satisfied when the BIA
adopted an IJ’s decision in full “without saying that it limited the scope of its
decision to [certain grounds]” because “[t]he BIA is presumably aware of its ability
to decline to review an argument when a petitioner has not properly raised the
argument on appeal to the BIA”); id. (holding that we have jurisdiction over an
unexhausted issue “[w]hen the BIA has ignored a procedural default” (emphasis
added)). Because we lack jurisdiction to consider these unexhausted issues, 8
U.S.C. § 1252(d)(1), we dismiss these parts of the petition.
3. Substantial evidence supports the agency’s denial of Lopez-Araisa’s CAT
claim. Lopez-Araisa argued before the agency that country conditions reports
establish that police in Mexico have committed atrocious crimes and work in
tandem with drug cartels. But “generalized evidence of violence and crime in
Mexico is not particular to [a] [p]etitioner[] and is insufficient to meet [the CAT]
standard.” Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Lopez-
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Araisa failed to meet his burden of showing that he in particular has been tortured
in Mexico or would be tortured there if he returns. See 8 C.F.R. § 208.16(c)(2) &
(3)(i). Notably, his maternal aunt continued to reside in Tijuana for years without
incident after the alleged kidnapping, which significantly undercuts his claim that
he would more likely than not be tortured if he returns to Mexico.
The stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DISMISSED in part and DENIED in part.
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