Luis Maldonado Barrios v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS MALDONADO BARRIOS, No. 16-73437 Petitioner, Agency No. A094-380-556 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 28, 2022** San Francisco, California Before: M. MURPHY,*** GRABER, and OWENS, Circuit Judges. Luis Maldonado Barrios, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision summarily * 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 Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. affirming the immigration judge’s (“IJ”) decision denying his applications for withholding of removal and protection under the Convention Against Torture (“CAT”). Where, as here, the BIA summarily affirms the IJ and cites Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), “we review the IJ’s decision as if it were the BIA’s.” Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008). We review the agency’s factual determinations for substantial evidence, and we will not reverse unless the evidence compels a contrary conclusion. Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017). As the parties are familiar with the facts, we do not recount them here. We dismiss in part and deny in part the petition. 1. Maldonado Barrios’ CAT claim is unexhausted and must be dismissed for lack of jurisdiction. See Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir. 2019) (per curiam) (“Exhaustion . . . is jurisdictional and therefore generally bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below.” (citation and internal quotation marks omitted)). Claims are exhausted before the BIA when the agency has “notice of what was being challenged” and an “opportunity to pass” on the contested issues. Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (citations omitted). A general or conclusory challenge is insufficient because it “does not apprise the BIA of the particular basis for [petitioner]’s claim.” Rizo v. Lynch, 810 F.3d 688, 692 (9th Cir. 2016). In his brief to the BIA, Maldonado Barrios 2 cursorily mentioned that he was appealing the IJ’s denial of CAT relief, but did not make any arguments as to the relevant issues. This conclusory challenge is insufficient for exhaustion, and we therefore dismiss the petition as to the CAT claim. 2. Contrary to the government’s contention, Maldonado Barrios’ claim for withholding of removal was exhausted before the BIA. While Maldonado Barrios’ arguments regarding withholding were undeveloped in his brief to the BIA, they referenced the specifics of his case and were sufficient to “apprise the …

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