NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS JUAN CARLOS CERRITOS-DURAN, No. 19-72108 Petitioner, Agency No. A076-352-619 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 5, 2021** Pasadena, California Before: SILER,*** HURWITZ, and COLLINS, Circuit Judges. Juan Carlos Cerritos-Duran, a native and citizen of Mexico, petitions for review of the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“Torture Convention”). We dismiss the petition in part and deny it 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 that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1. Cerritos-Duran failed to exhaust his withholding of removal and Torture Convention claims because he did not challenge the denial of those claims by the immigration judge (“IJ”) in his brief before the Board of Immigration Appeals (“BIA”). Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (Petitioner will “be deemed to have exhausted only those issues he raised and argued in his brief before the BIA.”). Although the BIA generally adopted the decision of the immigration judge pursuant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), the BIA also included a footnote expressly noting that Cerritos-Duran did “not challenge the Immigration Judge’s denial of his applications for withholding of removal and protection under the Convention Against Torture” and that therefore “these issues are waived.” “By so noting, the [BIA] made clear that it did not pass on th[ose] issue[s] and that its adoption of the reasoning of the IJ did not extend” to them. Abebe v. Gonzales, 432 F.3d 1037, 1040 n.4 (9th Cir. 2005) (en banc). Because Cerritos-Duran did not raise his withholding of removal and Torture Convention claims to the BIA, and the BIA did not consider their merits, those claims are unexhausted and this court lacks jurisdiction to review them. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004). 2. The BIA properly upheld the IJ’s denial of Cerritos-Duran’s application for asylum. In addressing this claim, we review the agency’s “‘legal 2 determinations de novo, and its factual findings for substantial evidence.’” Diaz- Jimenez v. Sessions, 902 F.3d 955, 958 (9th Cir. 2018) (citation omitted). Substantial evidence review is “highly deferential,” and we may set aside the agency’s conclusion “only if the evidence in the record compels a contrary result.” Parussimova v. Mukasey, 555 F.3d 734, 738 (9th Cir. 2009). a. Substantial evidence supports the agency’s conclusion that Cerritos- Duran did not demonstrate past harms rising to the level of persecution. Cerritos- …
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