Emiliana Baten Rosas v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIANA EDELIA BATEN ROSAS; No. 20-71288
et al.,
Agency Nos. A203-602-431
Petitioners, A203-602-432
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Emiliana Edelia Baten Rosas1 and her son, natives and citizens of
Guatemala, petition for review of the Board of Immigration Appeals’ order
*
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).
1
Although petitioner’s 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.”
dismissing their appeal from an immigration judge’s 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 agency’s 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 agency’s 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 party’s
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 agency’s 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).
2 20-71288
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.
3 20-71288