Opinion
23-1019
01-24-2024
WALTHER ALEXAN CARDOZA FRANCO; et al., Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A201-591-544, A201-591-546, A201-591-545
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
MEMORANDUM
Walther Alexan Cardoza Franco, Rebeca Zavaleta Castro, and Zavaleta Castro's minor son, natives and citizens of El Salvador, petition pro se for review of the Board of Immigration Appeals' ("BIA") order dismissing their appeal from an immigration judge's ("IJ") decision denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency's factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny the petition for review.
Because petitioners do not challenge the BIA's determination that they waived the IJ's dispositive finding that they did not establish the Salvadoran government was or would be unable or unwilling to protect them from the private actors they fear, we do not address it. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). To the extent petitioners address the merits of this determination, their contentions are not properly before the court because they failed to raise them before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing rule). Thus, petitioners' asylum and withholding of removal claims fail.
Substantial evidence supports the agency's denial of CAT protection because petitioners failed to show it is more likely than not they will be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).