Rivera v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE RIVERA, No. 22-1366 Agency No. Petitioner, A070-942-061 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 12, 2023 ** Before: WALLACE, LEE, and BUMATAY, Circuit Judges. Jose Rivera, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture * 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). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review factual findings for substantial evidence. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny the petition for review. We do not disturb the determination that Rivera failed to establish he suffered harm that rises to the level of persecution. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009) (petitioner’s past experiences, including two beatings, even considered cumulatively, did not compel a finding of past persecution); see also Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022) (court need not resolve whether de novo or substantial evidence review applies, where result would be the same under either standard). Because Rivera does not challenge the determination that the perceived wealthy returnee-based particular social group is not cognizable, we do not address it. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). Thus, Rivera’s asylum and withholding of removal claims fail. Rivera’s contentions regarding a newly-raised particular social group and political opinion are not properly before the court because he failed to raise them before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing rule). We do not address Rivera’s contentions as to whether the Salvadoran 2 22-1366 government is unable or unwilling to protect him, internal relocation, and discretion because the BIA did not deny relief on these grounds. See Santiago- Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.” (citation and internal quotation marks omitted)). Because Rivera does not contest the BIA’s determination that he waived challenge to the IJ’s denial of CAT protection, we do not address it. See Lopez- Vasquez, 706 F.3d at 1079-80. To the extent Rivera raises the merits of his CAT claim, they are not properly before the court because he failed to raise them before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also Santos-Zacaria, 598 U.S. at 417-19 (section 1252(d)(1) is a non-jurisdictional claim-processing rule). We do not consider the materials Rivera references in his 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 22-1366