Salvador Zarate v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR ZARATE, No. 14-72434
Petitioner, Agency No. A070-814-780
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Salvador Zarate, a native and citizen of Guatemala, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. §1252. We review for
substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006). We dismiss in part and deny in part the petition
for review.
We lack jurisdiction to consider Zarate’s ineffective assistance of counsel
claim because he did not exhaust it before the BIA. See Ontiveros-Lopez v. INS,
213 F.3d 1121, 1124 (9th Cir. 2000) (requiring an alien who argues ineffective
assistance of counsel to exhaust his administrative remedies by first presenting the
issue to the BIA).
The IJ denied Zarate’s claims for relief based on an adverse credibility
determination and independently denied his claims on the merits. The BIA
affirmed the IJ’s denial only on the merits. Although Zarate challenges the IJ’s
adverse credibility determination and the BIA’s failure to address the IJ’s adverse
credibility findings, he does not raise any challenge to the BIA’s dispositive denial
on the merits. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.
1996) (issues not argued in opening brief deemed waived). Thus, we deny the
petition as to Zarate’s asylum, withholding of removal and CAT claims.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
2 14-72434