BATEN ROSAS v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-29No. No. 20-71288

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part.

Emiliana Edelia Baten Rosas and her son, both Guatemalan nationals, sought court review of the Board of Immigration Appeals' dismissal of their appeal challenging an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief. The petitioners did not argue in their opening brief that they met the required standard for persecution based on protected grounds, thereby waiving that challenge. Additionally, any new social group theory they introduced for the first time in their opening brief could not be considered because it had not been presented to the agency.

The court found that substantial evidence supported the agency's denial of Convention Against Torture protection because the petitioners failed to demonstrate it was more likely than not they would face torture by the Guatemalan government or with its consent or acquiescence if returned. A temporary stay of removal remained in effect pending issuance of the mandate, but the petitioners' motion for a longer-term stay was otherwise denied.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether petitioners established persecution on account of a protected ground for asylum
Whether new social group claims raised for the first time in opening brief are subject to review
Whether substantial evidence supported denial of Convention Against Torture relief

Procedural posture

Petitioners appealed the Board of Immigration Appeals' decision dismissing their appeal of an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Emiliana Edelia Baten Rosas

and her son, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judges decision denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.

In their opening brief, petitioners do not challenge the agencys dispositive determination that they failed to establish that they were or would be persecuted on account of a protected ground. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th Cir. 2013) (issues not specifically raised and argued in a partys opening brief are waived). To the extent petitioners raise a new social group for the first time in their opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Thus, petitioners’ asylum and withholding of removal claims fail.

Substantial evidence supports the agencys denial of CAT relief because petitioners failed to show it is more likely than not they would be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

FOOTNOTES

. Although petitioners name appears as “Baten Rosas” in the Petition for Review and Answering Brief, the agency decisions, Notice to Appear, and I-589 application show her name as “Baten-Rojas.”