Ana Lidia Vasquez v. Merrick Garland

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-2015 ANA LIDIA ZUNIGA VASQUEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 21, 2021 Decided: November 23, 2021 Before FLOYD, THACKER, and HARRIS, Circuit Judges. Petition for review dismissed by unpublished opinion. Judge Harris wrote the opinion, in which Judge Floyd and Judge Thacker joined. ARGUED: Anser Ahmad, AHMAD & ASSOCIATES, McLean, Virginia, for Petitioner. Gregory A. Pennington, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jeffrey Bossert Clark, Acting Assistant Attorney General, Justin Markel, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PAMELA HARRIS, Circuit Judge: Ana Lidia Zuniga Vasquez, a citizen and native of El Salvador, seeks review of a final order of removal. Zuniga testified that she fled El Salvador after she and her son were threatened with death by MS-13 gang members who had raped and impregnated her. An immigration judge denied her application for asylum and other forms of relief, in part because she failed to corroborate her claim, and the Board of Immigration Appeals (“BIA”) affirmed without opinion. We must dismiss Zuniga’s petition for review. Because Zuniga failed to raise dispositive issues before the BIA, we lack jurisdiction to review them. And although Zuniga attributes this failure to ineffective assistance of agency counsel, her ineffective assistance claim also should have been raised to the BIA, in a motion to reopen, and we may not consider it in the first instance now. I. In August 2015, Zuniga attempted to enter the United States without authorization and was apprehended by the Department of Homeland Security. This case arises from her application for relief from removal under the Immigration and Nationality Act (“INA”) and the Convention Against Torture (“CAT”). In support of her application, Zuniga recounted – in testimony deemed credible by the Immigration Judge (“IJ”) – her rape by three MS-13 gang members in El Salvador in March of 2010. As a result of the rape, Zuniga became pregnant and had a son. According 2 to Zuniga, though she reported her rape to the police and identified one of her rapists, the police did not “take [her] seriously” and refused to help. J.A. 119. After the rape, the gang continued to target Zuniga. Gang members frequently demanded that she “turn [herself] over to them,” believing that she became their property when they raped her. J.A. 234. Their threats appear to have culminated in July 2014, four years after the rape, when gang members held Zuniga at knifepoint, seized her son from her arms, and threatened to kill both of them if she did not “give [herself] up to them that day.” J.A. 116. In response, Zuniga immediately fled to Mexico. On August 30, 2015, after spending a year in Mexico, Zuniga attempted to enter the United …

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