Regaldo-Recino v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBER REGALDO-RECINO, No. 22-686
Agency No.
Petitioner, A077-444-226
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2023**
Phoenix, Arizona
Before: TALLMAN, OWENS, and BADE, Circuit Judges.
Rober Regaldo-Recino (“Petitioner”), a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) streamlined
affirmance of an immigration judge’s (“IJ”) decision denying his application for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). As 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).
parties are familiar with the facts, we do not recount them here. We dismiss in
part and deny in part the petition.
“Where, as here, the BIA summarily adopts the IJ’s decision without
opinion pursuant to 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as if it
were the BIA’s decision.” Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir.
2023) (internal quotation marks and citation omitted). “We review
jurisdictional and legal questions in the context of immigration proceedings de
novo.” Rivera Vega v. Garland, 39 F.4th 1146, 1152 (9th Cir. 2022). By
contrast, “[w]e review factual findings made as to [a petitioner’s] CAT claim
for substantial evidence.” Lopez v. Sessions, 901 F.3d 1071, 1074 (9th Cir.
2018). “Under [the substantial evidence] standard, we must uphold the agency
determination unless the evidence compels a contrary conclusion.” Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).
1. As an initial matter, we do not review the IJ’s adverse credibility and
statutory ineligibility determinations because Petitioner failed to exhaust these
issues before the BIA and waived them before this court. “Exhaustion, as set
forth in 8 U.S.C. § 1252(d)(1), is jurisdictional and therefore generally bars us,
for lack of subject-matter jurisdiction, from reaching the merits of a legal claim
not presented in administrative proceedings below.” Honcharov v. Barr, 924
F.3d 1293, 1296 n.2 (9th Cir. 2019) (per curiam) (internal quotation marks and
citation omitted). Additionally, where a petitioner fails to contest an issue in
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their opening brief, the issue is deemed waived. Corro-Barragan v. Holder,
718 F.3d 1174, 1177 n.5 (9th Cir. 2013).
Here, Petitioner’s brief before the BIA, which was prepared by counsel,
raised only the issue of whether Petitioner established a prima facie case for
CAT protection; it made no mention of the IJ’s adverse credibility or statutory
ineligibility determinations. Likewise, neither Petitioner’s opening brief nor
reply brief before this court challenges the adverse credibility or statutory
ineligibility determinations. Accordingly, Petitioner has failed to exhaust and
waived both issues, precluding our review.
2. Substantial evidence supports the agency’s finding that Petitioner
failed to establish the elements of his CAT claim. To receive CAT protection,
Petitioner must demonstrate that he is more likely than not to experience torture
if returned to Guatemala and that the torture will occur by or with the
acquiescence of a public official. Aguilar-Ramos v. Holder, 594 F.3d 701, 704
(9th Cir. 2010). “Absent credible testimony, [a petitioner’s] CAT claim rests on
country conditions reports and other corroborating evidence in the record [such
as] letters from his family and acquaintances.” Mukulumbutu v. Barr, 977 F.3d
924, 927 (9th Cir. 2020).
Here, because of the adverse credibility determination, Petitioner’s CAT
claim rests only on country reports, news articles, and his partner’s testimony
about the threatening messages she recently received. Although the country
reports provide general evidence of crime and corruption in Guatemala, they do
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not demonstrate that it is more likely than not that Petitioner will personally be
tortured if he returns. See id. at 928. In fact, Petitioner admitted that he has
never been physically harmed by gangs in Guatemala and has told immigration
officers multiple times that he has “no personal problems” in Guatemala and
“no fear” of returning there. The record evidence is insufficient to compel a
finding of a likelihood of future torture.
Nor does the record compel a finding of governmental acquiescence.
As the country reports indicate, the Guatemalan government has created the
“Presidential Commission against Corruption” to fight widespread corruption.
Evidence that a government is taking measures to combat crime and violence,
even if not successfully, supports a finding that the government is not willfully
blind. See Garcia-Milian v. Holder, 755 F.3d 1026, 1035 (9th Cir. 2014).
Moreover, Petitioner admitted that the police opened investigations after his
family reported the deaths of his cousins. “Evidence that the police were aware
of a particular crime, but failed to bring the perpetrators to justice, is not in itself
sufficient to establish acquiescence in the crime.” Id. at 1034. Accordingly, the
evidence does not compel a conclusion that Petitioner established the elements
of his CAT claim.
The stay of removal remains in place until the mandate issues.
PETITION DISMISSED IN PART; DENIED IN PART.
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