From Casetext: Smarter Legal Research

Nimajuan v. Garland

United States Court of Appeals, Ninth Circuit
Oct 20, 2022
No. 17-71303 (9th Cir. Oct. 20, 2022)

Opinion

17-71303

10-20-2022

AUDILIO COLO NIMAJUAN, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 12, 2022

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-489-565

Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.

MEMORANDUM [*]

Audilio Colo Nimajuan, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's ("IJ") decision denying his applications for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). Our jurisdiction is governed by 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 review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

Colo Nimajuan does not raise, and therefore waives, any challenge to the agency's determination that he failed to establish changed or extraordinary circumstances to excuse his untimely asylum application. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party's opening brief are waived). Thus, we deny the petition for review as to Colo Nimajuan's asylum claim.

We do not disturb the agency's determination that Colo Nimajuan failed to establish he suffered harm that rises to the level of persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (persecution is "an extreme concept that does not include every sort of treatment our society regards as offensive" (internal quotation marks and citations omitted)); see also Flores Molina v. Garland, 37 F.4th 626, 633 (9th Cir. 2022) (court need not resolve whether de novo or substantial evidence review applies, where result would be the same under either standard). Substantial evidence supports the agency's determination that Colo Nimajuan failed to establish a clear probability of future persecution in Guatemala. See Tamang v. Holder, 598 F.3d 1083, 1094-95 (9th Cir. 2010) (fear of future persecution was not objectively reasonable).

The BIA did not err in concluding that Colo Nimajuan failed to meaningfully challenge the IJ's determination that he did not establish eligibility for withholding of removal based on his status as a long-time resident of the United States who will be perceived to have wealth, see Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019) (no error in BIA's waiver determination), and we lack jurisdiction to consider the merits of this claim, 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, Colo Nimajuan's withholding of removal claim fails.

Substantial evidence supports the agency's denial of CAT protection because Colo Nimajuan failed to show it is more likely than not he 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).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

[*] 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).


Summaries of

Nimajuan v. Garland

United States Court of Appeals, Ninth Circuit
Oct 20, 2022
No. 17-71303 (9th Cir. Oct. 20, 2022)
Case details for

Nimajuan v. Garland

Case Details

Full title:AUDILIO COLO NIMAJUAN, Petitioner, v. MERRICK B. GARLAND, Attorney…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 20, 2022

Citations

No. 17-71303 (9th Cir. Oct. 20, 2022)