NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2023
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALONDRA CECILIA PATRICIA No. 21-70368
MONTERO-ALVIZURES,
Agency No. A201-921-556
Petitioner,
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 8, 2023
Pasadena, California
Before: KLEINFELD and COLLINS, Circuit Judges.**
Alondra Cecilia Patricia Montero-Alvizures, a citizen of Guatemala,
petitions for review of the decision of the Board of Immigration Appeals (“BIA”)
upholding the order of the Immigration Judge (“IJ”) denying her applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“Torture Convention”). We have jurisdiction under § 242 of the
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
This matter is decided unanimously by a quorum of the panel. See 28 U.S.C.
§ 46(d); Ninth Cir. Gen. Order 3.2(h).
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252, and § 2242(d) of the
Foreign Affairs Reform and Restructuring Act, 8 U.S.C. § 1231 note. See
Nasrallah v. Barr, 140 S. Ct. 1683, 1690–91 (2020). We review the agency’s legal
conclusions de novo and its factual findings for substantial evidence. See Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Under the
substantial evidence standard, “the administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). We deny the petition.
1. Substantial evidence supports the agency’s denial of Montero-Alvizures’s
claims for asylum and withholding of removal.
In this court, Montero-Alvizures argues that she suffered past persecution on
account of her anti-corruption and anti-organized-crime political opinions and
related political activities. While she made these claims to the IJ, she failed to
raise them anywhere in her brief to the BIA. Because Montero-Alvizures has not
exhausted before the BIA the claims that she raised in her opening brief in this
court, the BIA did not address them. The Government has properly invoked
Montero-Alvizures’s failure to exhaust, and so we decline to consider those claims.
See Bare v. Barr, 975 F.3d 952, 960–961 (9th Cir. 2020) (explaining that
exhaustion requires claims “to have first been raised in the administrative
proceedings below and to have been sufficient to put the BIA on notice of what
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was being challenged,” which requires more than “a general challenge to the IJ’s
decision” (citations omitted)); cf. Santos-Zacarias v. Garland, 598 U.S. 411, 416–
23 (2023) (holding that the INA’s exhaustion requirement is not jurisdictional and
may be waived or forfeited if not asserted by the Government).
Before the BIA, Montero-Alvizures argued that she had been persecuted on
account of her anti-abortion political opinion and her proposed particular social
group of Guatemalan women who are viewed as property by their male partners.
But in her opening brief to this court, Montero-Alvizures failed to challenge the
BIA’s determination that any harms she suffered in Guatemala were not on
account of her anti-abortion political opinion or her membership in this particular
social group. As such, she has forfeited this claim. See Lopez-Vasquez v. Holder,
706 F.3d 1072, 1079–80 (9th Cir. 2013).
Even reviewing those grounds for persecution that were exhausted before
the BIA, we conclude that substantial evidence supports the BIA’s lack of nexus
finding. The BIA found that there was no clear error in the IJ’s determination that
the harms Montero-Alvizures suffered were on account of a personal dispute with
her ex-partner over their relationship and custody of their child, which cannot serve
as grounds for asylum. See Garcia v. Wilkinson, 988 F.3d 1136, 1144–45 (9th Cir.
2021) (“[P]urely personal retribution is not persecution on account of a protected
ground.” (internal quotation marks omitted)). The BIA further concluded that
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there was no evidence that established a “persecutory” motive for the harms
Montero-Alvizures suffered, and consequently, she had failed to establish a nexus
between her political opinion or particular social group and the harms she suffered.
Nothing in the record compels a contrary conclusion.
2. Substantial evidence also supports the agency’s denial of relief under the
Torture Convention. Montero-Alvizures failed to establish “that she will more
likely than not be tortured with the consent or acquiescence of a public official if
removed to her native country,” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183
(9th Cir. 2020), and the BIA found no clear error in the IJ’s decision that she did
not meet that standard. In its analysis of her Torture Convention claim, the BIA
did err in stating that Montero-Alvizures “was not physically harmed in
Guatemala,” when in fact Montero-Alvizures had testified that she had been beaten
by her ex-partner. But Montero-Alvizures failed to raise this error in her opening
brief in this court, and so she has forfeited the issue. See United States v. Perez,
116 F.3d 840, 845 (9th Cir. 1997). Even if the issue were not forfeited, there is no
error warranting remand. In denying relief under the Torture Convention, the BIA
provided alternative and independent reasons for affirming the IJ’s decision, which
had not made any such mistake. Specifically, the BIA upheld the IJ’s conclusion
that Montero-Alvizures had failed “to establish that anyone in Guatemala is even
looking for [Montero-Alvizures], much less, desiring to torture her” or that the
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Guatemalan government would acquiesce in any such torture. The BIA’s error
regarding Montero-Alvizures’s past harm by her ex-partner does not vitiate this
finding concerning her failure to show a likelihood of future torture in which the
Guatemalan government would acquiesce. The agency permissibly concluded, on
this record, that Montero-Alvizures had failed to show such a likelihood.
PETITION DENIED.
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