NOT FOR PUBLICATION FILED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.
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