Unreported / Non-Citable
Background
Carla Avalos-Hernandez, a native and citizen of El Salvador, sought review of a Board of Immigration Appeals decision dismissing her appeal from an Immigration Judge's order denying asylum, withholding of removal, and protection under the Convention Against Torture. The Ninth Circuit exercised jurisdiction under 8 U.S.C. § 1252. Circuit Judges R. Nelson and H.A. Thomas and Northern District of California District Judge P. Casey Pitts, sitting by designation, unanimously found the case suitable for decision without oral argument. The court reviewed legal questions de novo and factual questions for substantial evidence.
The memorandum did not decide whether Avalos-Hernandez satisfied the one-year asylum application deadline; it assumed that point in her favor. It instead addressed whether she preserved her challenges. She had not argued to the BIA that the IJ erred in finding that she failed to establish the Salvadoran government's inability or unwillingness to protect her. She also did not dispute that she omitted any well-founded-fear-of-future-persecution argument from her BIA presentation. Her CAT claim presented a different preservation problem: she failed to make meaningful arguments about it in her brief to the court of appeals.
The Court’s Holding
The court deemed exhausted only issues Avalos-Hernandez raised and argued before the BIA. Her government-protection argument therefore failed for lack of exhaustion because it was absent from her BIA brief. The court noted that an applicant alleging past persecution bears the burden of showing persecution by the government or by forces the government was unable or unwilling to control. Although someone unable to establish past persecution may still qualify through a well-founded fear of future persecution, Avalos-Hernandez did not dispute that she had presented no future-persecution arguments to the BIA. The absence of a well-founded fear of future persecution was dispositive of her asylum claim on the record and arguments before the court.
Because failing to establish asylum eligibility forecloses withholding of removal, the court did not need to decide whether the BIA erred on the withholding claim. It separately held that Avalos-Hernandez forfeited CAT protection by failing to make meaningful arguments in her opening brief, applying the requirement that an issue be specifically and distinctly argued. The court denied the petition for review. In a footnote, it also denied her opposed motion to stay removal and lifted, effective immediately, the temporary stay previously entered under General Order 6.4(c).
Key Takeaways
- The court deemed exhausted only the issues Avalos-Hernandez raised and argued before the BIA, leaving her government-protection challenge unexhausted.
- Assuming without deciding that the asylum application met the one-year deadline did not overcome the exhaustion and future-persecution deficiencies.
- The absence of a well-founded fear of future persecution was dispositive of the asylum claim, and failure to establish asylum eligibility foreclosed withholding of removal.
- The court expressly left undecided whether the BIA erred on withholding of removal and treated the CAT claim as forfeited for inadequate appellate briefing.
- The petition and the opposed stay motion were denied, and the temporary stay of removal was lifted effective immediately.
Why It Matters
This unpublished, nonprecedential memorandum illustrates the distinct preservation consequences in an immigration petition: arguments omitted from the BIA presentation were deemed unexhausted, while the CAT claim was forfeited through inadequate briefing in the court of appeals. It also shows the court resolving the petition without deciding the assumed filing-deadline issue or whether the BIA erred on withholding.
The immediate lifting of the temporary stay is a separate practical consequence of the disposition. The decision's analysis is tied to Avalos-Hernandez's preserved arguments and does not announce a general rule that every asylum or withholding claim fails for the same reasons.