NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ANTONIO SANCHEZ REYES, No. 21-316 Petitioner, Agency No. A095-808-249 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 9, 2023 Pasadena, California Before: GILMAN,** FORREST, and H.A. THOMAS, Circuit Judges. Jose Antonio Sanchez Reyes, a citizen of Mexico, petitions for review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from an order of an immigration judge (IJ) denying his applications for asylum, withholding of removal, cancellation of removal, and protection under the Convention Against Torture (CAT). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. We have jurisdiction in part under 8 U.S.C. § 1252(a). “Because the BIA agreed with the IJ’s reasoning and added some of its own, we review the BIA’s decision and those parts of the IJ’s decision upon which it relied.” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (citation omitted). Factual findings pertaining to all of Sanchez Reyes’s claims are reviewed under the “substantial evidence” standard, meaning that “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Dong v. Garland, 50 F.4th 1291, 1296 (9th Cir. 2022) (quoting Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020)). 1. Sanchez Reyes failed to challenge before the BIA the IJ’s determination that his asylum claim was time-barred. The BIA thus deemed any challenge waived on appeal. This constitutes a failure by Sanchez Reyes to exhaust his asylum claim before the agency, which deprives us of jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We therefore dismiss the petition as to Sanchez Reyes’s asylum claim. 2. To qualify for withholding of removal, an applicant must show a “clear probability” of persecution because of a protected ground, such as membership in a “particular social group.” Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021) (internal quotation marks omitted). If a petitioner can show that he has suffered past persecution, a clear probability of future persecution is presumed. Sharma, 9 F.4th at 1060. 2 Substantial evidence supports the BIA’s conclusion that Sanchez Reyes did not himself experience past persecution based on several members of his family being killed by the Zeta cartel. Harm to others, even to family members, generally does not constitute persecution when the applicant is not personally harmed or threatened. Tamang v. Holder, 598 F.3d 1083, 1091–92 (9th Cir. 2010). Moreover, all the violence against Sanchez Reyes’s family, except for the murder of his brother in the 1990s, occurred after Sanchez Reyes left Mexico. See id. at 1092 …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals