NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO STEVEN CASTRO- No. 20-73824
HENRIQUEZ; KARLA NOHEMY
HENRIQUEZ-CERON, Agency Nos. A206-845-157
A206-845-172
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 18, 2023
Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and ROSENTHAL,** District
Judge.
Karla Henriquez-Ceron (“Henriquez-Ceron”) and her minor son Eduardo
Castro-Henriquez (“Eduardo”), natives and citizens of El Salvador, petition for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.
review of a decision of the Board of Immigration Appeals (“BIA”) affirming the
denial by an immigration judge (“IJ”) of their claims for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We dismiss the petition in part, deny in part,
and grant and remand in part for proceedings consistent with this disposition.1
1. We grant the petition for review as to the asylum and withholding of
removal claims. Petitioners sought asylum and withholding of removal based on
Henriquez-Ceron’s membership in two particular social groups (“PSGs”): “women
in a domestic relationship who are unable to leave that relationship” and “El
Salvadorian women in a domestic relationship with a member of the military who
are afraid to leave.” The IJ found that Henriquez-Ceron was not a member of
either PSG. The BIA, stating that petitioners did not “meaningfully contest” that
finding, deemed the issue abandoned. The BIA did so in error. Petitioners’ brief
to the BIA fairly put the BIA on notice of a challenge to the IJ’s membership
finding. See Martinez v. Barr, 941 F.3d 907, 922 (9th Cir. 2019) (“‘[O]ur
precedent requires nothing more than’ putting ‘the BIA on notice’ of a challenge
such that the BIA ‘had an opportunity to pass’ on it.” (alteration in original)
(quoting Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004))); Bare v. Barr, 975
1
The parties represented at oral argument that they were amenable to mediation,
and the court encourages them to pursue this option.
2
F.3d 952, 960 (9th Cir. 2020) (noting that “the petitioner may raise a general
argument in the administrative proceeding and then raise a more specific legal
issue on appeal”).
As the government acknowledged at oral argument, neither the agency’s
cognizability finding nor its nexus finding provide an alternate basis on which to
uphold the agency’s denial of asylum and withholding. These findings rested on
Matter of A-B- (“A-B- I”), 27 I. & N. Dec. 316 (Att’y Gen. 2018), which has since
been vacated by Matter of A-B- (“A-B- III”), 28 I. & N. Dec. 307 (Att’y Gen.
2021). Therefore, we remand for the agency to address the issue of membership in
the PSGs and reconsider cognizability and nexus in light of A-B- III.
2. The agency’s denial of CAT relief is supported by substantial
evidence. Even if Henriquez-Ceron suffered past torture at the hands of Eduardo’s
father, he did not have physical contact with Henriquez-Ceron for the two years
prior to Henriquez-Ceron’s departure for the United States, despite knowing where
she lived in El Salvador. In light of this evidence, the record does not compel the
conclusion that Henriquez-Ceron would more likely than not be tortured if she
returned to El Salvador. See Dawson v. Garland, 998 F.3d 876, 882–83 (9th Cir.
2021) (noting that the “inference that future torture is likely to recur breaks down
where ‘circumstances or conditions have changed significantly, not just in general,
but with respect to the particular individual’” (quoting Nuru v. Gonzales, 404 F.3d
3
1207, 1218 (9th Cir. 2005))). Additionally, given the basis for the agency’s
decision, the failure to specifically mention evidence concerning domestic violence
and sexual abuse in El Salvador does not indicate that the agency failed to consider
“all evidence relevant to the possibility of future torture.” See Cole v. Holder, 659
F.3d 762, 771–72 (9th Cir. 2011) (quoting 8 C.F.R. § 1208.16(c)(3)). Therefore,
we deny the petition for review as to the CAT claims.
3. Petitioners’ arguments about the agency’s handling of Eduardo’s
claims for relief were not raised to the agency, and we thus lack jurisdiction to
review them. See Alvarado v. Holder, 759 F.3d 1121, 1127 (9th Cir. 2014).
Because the BIA could have corrected the purported procedural errors and granted
relief on the due process claim if raised in the agency appeal, no exception to the
exhaustion requirement applies here. See Iraheta-Martinez v. Garland, 12 F.4th
942, 949 (9th Cir. 2021). We dismiss this aspect of the petition.
PETITION DISMISSED IN PART, DENIED IN PART, AND
GRANTED IN PART; REMANDED.2
2
The parties shall bear their own costs.
4