Opinion
23-3339
12-06-2024
MARVIN RUANO CRUZ; HENNY CRUZ DE RUANO, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 18, 2024 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A209-080-128, A209-080-127
Before: RAWLINSON, CHRISTEN, and JOHNSTONE, Circuit Judges.
MEMORANDUM [*]
Petitioners Marvin Ruano Cruz and Henny Cruz de Ruano, natives of El Salvador, petition for review of the Board of Immigration Appeals' (BIA) final order of removal, in which the BIA affirmed the Immigration Judge's (IJ) decision denying the Petitioners' applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the agency's legal conclusions de novo and factual findings for substantial evidence. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). As the parties are familiar with the facts, we do not recount them here. We deny the petition.
Petitioners argue the IJ improperly denied asylum without first inquiring about the basis for asylum-specifically, what particular social group petitioners asserted. Petitioners did not make this argument before the BIA, therefore it was not exhausted. Petitioners also did not exhaust their argument that the IJ should have granted relief under CAT. In their brief to the BIA, Petitioners recited their burden in pursuing a CAT claim but made no argument as to how they met that burden. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) ("Exhaustion requires a non-constitutional legal claim to the court on appeal to have first been raised in the administrative proceedings below, and to have been sufficient to put the BIA on notice of what was being challenged." (quoting Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020))). Although 8 U.S.C. § 1252(d)(1)'s exhaustion requirement is not jurisdictional and can be waived or forfeited, Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023), Respondent does not waive the exhaustion requirement here.
Because a single BIA member affirmed the IJ's decision without opinion, "the IJ's decision becomes the BIA's decision and we evaluate the IJ's decision as we would that of the [BIA]." Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004) (quotation omitted).
Because Petitioners did not exhaust their argument that the IJ improperly denied asylum without first inquiring about the basis for asylum, and because Petitioners otherwise abandoned the arguments they did make to the BIA as to their particular social group, Petitioners have not established a protected ground and their asylum and withholding of removal claims fail. See 8 U.S.C. § 1101(a)(42)(A), § 1231(b)(3)(A). Likewise, because Petitioners failed to exhaust any argument as to how they qualified for CAT protection, that claim also fails.
The temporary stay of removal shall remain in effect until issuance of the mandate. The motion for stay of removal is otherwise denied.
[*] 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).