Sanchez Aguilar v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELINE OTILA SANCHEZ- No. 22-421
AGUILAR,
Petitioner, Agency No. A208-601-707
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2023**
Pasadena, California
Before: M. SMITH, LEE and VANDYKE, Circuit Judges
Jacqueline Sanchez-Aguilar, a native and citizen of El Salvador, seeks review
of an order by the Board of Immigration Appeals (BIA) dismissing her appeal from
an Immigration Judge’s (IJ) denial of her 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). We have
jurisdiction under 8 U.S.C § 1252(a)(1), and we deny the petition.
Sanchez-Aguilar applied for admission to the United States at the Ota Mesa,
California, port of entry lacking a valid visa, passport, or other entry documentation.
The Department of Homeland Security charged her with removability under 8
U.S.C. § 1182(a)(7)(A)(i)(I). Sanchez-Aguilar conceded the charge and filed
applications for asylum, withholding of removal, and protection under CAT. The IJ
denied all three applications in an oral decision. Sanchez-Aguilar then appealed the
IJ’s decision to the BIA, which dismissed her appeal.
1. Asylum and withholding of removal claims. Sanchez-Aguilar’s asylum
and withholding of removal claims necessarily fail because she waived any
challenge to the IJ’s finding that she did not establish that Salvadoran government
officials were, or would be, unable or unwilling to control her alleged persecutors.
First, she failed to raise and thus exhaust this issue before the BIA. See Santos-
Zacaria v. Garland, 143 S. Ct. 1103, 1116 (2023) (holding that, although 8 U.S.C.
§ 1252(d)(1)’s exhaustion requirement is not jurisdictional, it is still subject to the
rules regarding waiver and forfeiture). Second, she has not raised this issue before
us, either. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013)
(where petitioner fails to contest an issue in her opening brief, the issue is deemed
waived). We thus deny her asylum and withholding of removal claims.
2
Alternatively, the BIA did not err in upholding the IJ’s denial of asylum and
withholding of removal claims because substantial evidence supports the BIA’s
finding that Sanchez-Aguilar failed to establish membership in her proposed
particular social group comprised of “persons who testified against gang members.”
Sanchez-Aguilar relies upon Henriquez-Rivas v. Holder, in which we held that
witnesses who testified in open court against gang members in El Salvador may
constitute a cognizable particular social group. 707 F.3d 1081, 1092 (9th Cir. 2013)
(en banc). Sanchez-Aguilar, however, concedes that she never in fact testified in
open court against gang members.
2. CAT. “To establish entitlement to protection under CAT, an applicant
must show ‘it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.’” Plancarte Sauceda v. Garland, 23 F.4th 824,
834 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.16(c)(2)). “The torture must be
‘inflicted by, or at the instigation of, or with the consent or acquiescence of, a public
official acting in an official capacity or other person acting in an official capacity.’”
Id. (quoting 8 C.F.R. § 1208.18(a)(1)).
Substantial evidence supports the agency’s denial of CAT relief on the
grounds that Sanchez-Aguilar failed to establish a likelihood that she would be
tortured in El Salvador upon her return and that the Salvadoran government would
acquiesce to such conduct. See Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir.
3
2021) (noting that a “speculative fear of torture is not sufficient to satisfy the
applicant’s burden” for protection under CAT). The BIA considered conditions in
El Salvador as evidence but found them insufficient to establish a particularized
threat of torture. The record does not compel a contrary conclusion. See Delgado-
Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010); Dhital v. Mukasey, 532 F.3d
1044, 1051–52 (9th Cir. 2008).
The temporary stay of removal remains in place until the mandate issues. The
motion for a stay of removal is otherwise denied. PETITION DENIED.
4