NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTINA DOREY SERRANO No. 19-72218
VAZQUEZ,
Agency No. A078-532-429
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2021**
Pasadena, California
Before: KELLY,*** M. SMITH, and FORREST, Circuit Judges.
Petitioner Martina Dorey Serrano-Vazquez, a citizen of Mexico, seeks
review of the Board of Immigration Appeals’ (BIA) decision dismissing her appeal
*
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 Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
from the decision of an Immigration Judge (IJ) denying her applications for
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). We deny the petition for review in part and dismiss in part.
The parties are familiar with the facts and we need not restate them here.
Suffice it to say that in January 2014, with two previous unlawful entries into the
United States, Petitioner sought admission without valid entry documents.
Pursuant to a Notice to Appear (NTA), Petitioner was charged with inadmissibility.
8 U.S.C. § 1182(a)(7)(A)(i)(I). She conceded her removability and applied for
asylum, withholding of removal, and CAT relief. The basis for her claims is
membership in a particular social group.
STANDARD OF REVIEW
We review the BIA’s decision except where it explicitly adopts the IJ’s
opinion. Plancarte v. Garland, 9 F.4th 1146, 1151 (9th Cir. 2021). We review
legal questions de novo. Nguyen v. Barr, 983 F.3d 1099, 1101 (9th Cir. 2020).
But we review the factual findings that underlie the BIA’s decision for substantial
evidence. Plancarte, 9 F.4th at 1151. We defer to the agency’s findings “unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B); see I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992);
Hussain v. Rosen, 985 F.3d 634, 642 (9th Cir. 2021).
DISCUSSION
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A. Exhaustion
Petitioner argues that, under Pereira v. Sessions, 138 S. Ct. 2105 (2018), her
NTA is invalid because it does not specify the date and time of the proceeding in
accordance with 8 U.S.C. § 1229(a). Accordingly, she argues that the immigration
court lacks subject matter and personal jurisdiction. Not having been raised before
the BIA, this issue is unexhausted. According to Petitioner, she was not required
to exhaust this issue because the Supreme Court’s decision in Pereira was not
released until after her briefing before the BIA. This is incorrect: Petitioner filed
her brief before the BIA on February 21, 2019, and the Court decided Pereira on
June 21, 2018. Petitioner’s failure to exhaust thus bars our review, and we must
dismiss this claim. See Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th Cir. 2004).
B. Asylum and Withholding of Removal
Petitioner challenges the denial of her asylum and withholding of removal
claims at large, but she does not address the agency’s finding that she lacked a
well-founded fear of future persecution because of changed circumstances.
Petitioner only mentions changed circumstances when reciting the legal standard
for defeating a presumption of well-founded fear. This is insufficient. Fed. R.
App. P. 28(a)(8)(A); Crime Just. & Am., Inc. v. Honea, 876 F.3d 966, 978–79 (9th
Cir. 2017). Petitioner necessarily waives any challenge to this finding. Honea,
876 F.3d at 979.
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Moreover, the IJ’s conclusion that she lacks a well-founded fear of future
persecution is supported by substantial evidence given the lack of contact between
Petitioner and her ex-husband for decades, which is dispositive of her asylum and
withholding of removal claims. Petitioner’s last contact with her former husband
was over 20 years ago, and he lives “some three days’ travel from the town where
[Petitioner] would reside if she returns to Mexico.” Given our disposition, it is
unnecessary to reach the merits of Petitioner’s arguments concerning particular
social group membership. See Hussain, 985 F.3d at 642.
C. Protection Under the Convention Against Torture
When reviewing a claim for CAT relief, the BIA must provide its reasons
and demonstrate that it has properly considered all factors. Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). This includes consideration of
country conditions in the record, so “[t]he failure of the IJ and BIA to consider
evidence of country conditions constitutes reversible error.” Aguilar-Ramos v.
Holder, 594 F.3d 701, 705 (9th Cir. 2010); see also 8 C.F.R. § 208.16(c)(3) (2021).
This is because country conditions alone can satisfy a CAT applicant’s burden.
Aguilar-Ramos, 594 F.3d at 705. Here, the IJ and the BIA did not mention the
country conditions in the record. Because we cannot assume that the BIA
considered evidence it does not discuss, we must remand. Etemadi v. Garland, 12
F.4th 1013, 1026 (9th Cir. 2021).
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The petition for review is DIMISSED IN PART, DENIED IN PART, and
REMANDED IN PART.
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