MANCIA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-15No. No. 18-73092

Summary · law.co

Holding. The petition for review is denied because Mancia waived appellate review by failing to challenge the agency's dispositive grounds for denying asylum (untimely filing), withholding of removal (insufficient proof that the government could not or would not protect him), and CAT relief (insufficient substantive arguments).

Jose Mancia, a Salvadoran national, appealed the denial of his asylum, withholding of removal, and Convention Against Torture claims. The court examined whether Mancia had properly challenged the agency's reasons for rejecting each form of relief. The court found that Mancia failed to address the dispositive grounds on which the immigration authorities had denied his applications, instead arguing only alternative points that did not directly confront the agency's core determinations.

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

Key issues

Whether an asylum applicant waives review by not contesting an untimeliness determination
Whether an applicant for withholding of removal must specifically challenge the finding that the government can provide protection
Whether vague assertions satisfy the requirement to meaningfully challenge CAT denial grounds
Whether harm to family members can substitute for direct harm to the applicant in persecution claims

Procedural posture

Mancia sought judicial review of a Board of Immigration Appeals decision affirming an immigration judge's denial of asylum, withholding of removal, and CAT relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Jose Mancia, a native and citizen of El Salvador, seeks review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal of the Immigration Judges (IJ) denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition because Mancia waived review of the agencys decision by not challenging its dispositive grounds for denying his applications for relief.

1. Mancia waived any challenge to the agencys denial of asylum. The agency denied Mancias asylum application as untimely filed. See 8 U.S.C. § 1158(a)(2)(B) (establishing a mandatory one-year filing requirement for asylum claims). In his briefing, Mancia argues only that he proved persecution based on harm suffered by his family members. Because Mancia did not challenge the agencys dispositive determination that his petition was untimely, his appeal of the agencys asylum decision fails. Sinha v. Holder, 564 F.3d 1015, 1018 n.2 (9th Cir. 2009).

2. Mancia also waived any challenge to the agencys denial of withholding of removal. Although Mancia challenged the IJs conclusion regarding his likelihood of future persecution

and whether the feared persecution was based on a protected ground, he did not challenge the agencys dispositive decision that he failed to prove that the Salvadoran government would be unable or unwilling to protect him. See Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013) (explaining that an applicant for withholding of removal bears the burden of showing that he would be “persecuted on account of a protected ground by the government or an actor the government is unable or unwilling to control”). Because he failed to challenge this determination, Mancias withholding argument fails. Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011).

3. For the same reason we decline to reach the withholding claim, we decline to reach the CAT claim. Mancia makes only vague assertions of error in his opening brief. By not meaningfully challenging either of the agencys bases for denying CAT protection, Mancia waived review of the agencys CAT determination. Id.

PETITION FOR REVIEW DENIED.

FOOTNOTES

. The IJ also concluded that Mancia did not suffer any past persecution. Mancia makes only a general argument that he has proven persecution through evidence that his siblings were extorted or harmed by gangs. To the extent this is a challenge to the IJs finding against past persecution, it fails. Tamang v. Holder, 598 F.3d 1083, 1091–92 (9th Cir. 2010) (recognizing that although harm to an applicants close family members is relevant to the assessment of whether the applicant suffered past persecution, it does not “substitute for harm to an applicant,” particularly when the applicant “was not in the country at the time he claims to have suffered past persecution”).