Antonio Zacarias Gonzalez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO ZACARIAS GONZALEZ; No. 20-72267
ANDRE YOVANY ZACARIAS
MONTEJO, AKA Andres Yovany Zacarias Agency Nos. A076-705-379
Montejo, A208-178-545
Petitioners,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 7, 2022**
Portland, Oregon
Before: GRABER and VANDYKE, Circuit Judges, and REISS,*** District Judge.
Petitioners Antonio Zacarias Gonzalez (“Zacarias Gonzalez”) and his son,
*
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).
***
The Honorable Christina Reiss, United States District Judge for the District of
Vermont, sitting by designation.
Andre Yovany Zacarias Montejo (“Zacarias Montejo”) petition for review of a
decision of the Board of Immigration Appeals (“BIA”) affirming the order of an
Immigration Judge denying their applications for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). We dismiss the
petition.
We have jurisdiction to review an appeal from the BIA only if an alien “has
exhausted all administrative remedies available to the alien as of right ….” 8 U.S.C.
§ 1252(d)(1). Failure to raise an issue before the BIA constitutes failure to exhaust
administrative remedies and deprives this court of jurisdiction to hear the matter.
See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). Similarly, issues not
raised and substantively addressed in a party’s opening brief before this court are
waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
Turning first to Petitioners’ applications for asylum and withholding of
removal, Petitioners failed to exhaust and have otherwise waived any argument
concerning two dispositive agency findings, namely, that Petitioners failed to prove
that Guatemalan authorities were unable or unwilling to protect them and that
internal relocation was not feasible. See Velasquez-Gaspar v. Barr, 976 F.3d 1062,
1064 (9th Cir. 2020); Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011)
(citing 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3)(i)). Petitioners failed to challenge either
finding in their notice of appeal or appeal brief to the BIA. Petitioners’ opening brief
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to this court is likewise deficient. As a result, we lack jurisdiction to consider, and
Petitioners have otherwise waived, any challenge to the above-noted findings. See
Figueroa, 543 F.3d at 492; Martinez-Serrano, 94 F.3d at 1259.
Regarding Petitioners’ applications for CAT protection, Petitioners failed to
challenge the Immigration Judge’s denial of their applications in both their notice of
appeal and appeal brief to the BIA. Likewise, Petitioners failed to challenge the
denial in their opening brief to this court. We thus lack jurisdiction to consider, and
Petitioners have otherwise waived, any challenge to the denial. See Figueroa, 543
F.3d at 492; Martinez-Serrano, 94 F.3d at 1259.
PETITION DISMISSED.
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