NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PEDRO LINARES-LINARES No. 20-71173 Petitioner, Agency No. A091-723-498 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 7, 2022** Pasadena, California Before: BERZON and FRIEDLAND, Circuit Judges, and KORMAN,*** District Judge. Pedro Linares-Linares (“Linares”), a native and citizen of Mexico, appeals * 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). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. from the Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture (“CAT”), as well as the BIA’s decision declining to grant him voluntary departure. We dismiss the petition as to Linares’s claims for relief and affirm the BIA’s decision not to grant voluntary departure. 1. We lack jurisdiction to review the merits of Linares’s asylum, withholding, and CAT claims, because he did not exhaust issues that are dispositive to those claims before the agency. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). The IJ rejected Linares’s asylum application on the ground that it was untimely. See 8 U.S.C. § 1158(a)(2)(B). Linares concedes that he abandoned the timeliness issue by not addressing it in his appeal brief before the BIA despite raising it in his notice to appeal. We have held that when a petitioner files a brief before the BIA, he will “be deemed to have exhausted only those issues he raised and argued in his brief before the BIA.” Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc). Abebe squarely resolves this issue. In his brief before the BIA, Linares did not contest the IJ’s determination that he had failed to show that the Mexican government would be unable or unwilling to protect him from the smuggler, his brother, or their associates. “To demonstrate entitlement to . . . withholding of removal on the basis of past persecution, an 2 applicant must present substantial evidence” that the persecution “is committed by the government or forces the government is either unable or unwilling to control.” Doe v. Holder, 736 F.3d 871, 877–78 (9th Cir. 2013). Linares cited this standard but did not argue that it had been met in his case. Indeed, Linares testified that the smuggler was incarcerated at the time of his hearing in 2018. Since the unexhausted “unable or unwilling” finding is dispositive to Linares’s withholding application, we lack jurisdiction to consider the merits of that application. We also lack jurisdiction to review the agency’s …
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