Daniel Diaz-Sandoval v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL WILBERTO DIAZ-SANDOVAL, No. 16-72264
Petitioner, Agency No. A206-734-838
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2022**
Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.
Daniel Wilberto Diaz-Sandoval, a native and citizen of El Salvador,
petitions pro se for review of the of the Board of Immigration Appeals’ (“BIA”)
order dismissing his appeal from an immigration judge’s decision denying his
applications for asylum, withholding of removal, and protection under the
*
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).
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for substantial evidence the agency’s factual findings. Conde
Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We dismiss in part and
deny in part the petition for review.
We lack jurisdiction to consider Diaz-Sandoval’s contentions regarding the
merits of his asylum and withholding of removal claims because he failed to raise
them before the BIA. See Segura v. Holder, 605 F.3d 1063, 1066 (9th Cir. 2010)
(“[Petitioner’s] failure to assert [a] claim before the BIA deprived it of the
opportunity to address the issue and divests us of jurisdiction to review it.”).
Substantial evidence supports the agency’s denial of CAT protection
because Diaz-Sandoval failed to show it is more likely than not he would be
tortured by or with the consent or acquiescence of the government if returned to El
Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
We do not consider the materials referenced in the opening brief that are
outside the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir.
1996) (en banc).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
2 16-72264