Cantaderio Ponce v. Bondi

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOCELYN BEATRIZ CANTADERIO No. 23-3111 PONCE; et al., Agency Nos. A241-963-171 Petitioners, A241-963-172 v. MEMORANDUM* PAMELA BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 19, 2025** Before: SILVERMAN, HURWITZ, and BADE, Circuit Judges. Jocelyn Beatriz Cantaderio Ponce and her child, natives and citizens of El Salvador, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their applications for asylum, withholding of removal, and protection under the * 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). Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). We review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review. Petitioners do not challenge the agency’s determination that the harm they experienced did not rise to the level of past persecution, so we do not address it. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). The BIA did not err in its conclusion that petitioners waived any challenge to the IJ’s dispositive finding that petitioners failed to establish an objectively reasonable fear of future persecution. See Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019) (no error in BIA’s waiver determination). Petitioners’ contention as to their future fear is not properly before the court because it is unexhausted. See 8 U.S.C. § 1252(d)(1) (administrative remedies must be exhausted); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is not jurisdictional). In light of this disposition, we need not reach petitioners’ remaining contentions regarding the merits of their claims. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach). 2 23-3111  Thus, petitioners’ asylum and withholding of removal claims fail. Substantial evidence supports the agency’s denial of CAT protection because petitioners failed to show it is more likely than not they will be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (“torture must be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’” (internal citation omitted)). We do not consider the materials petitioners reference in the opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963- 64 (9th Cir. 1996) (en banc). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED. 3 23-3111