Cante-Lopez v. Garland

United States Court of Appeals For the First Circuit No. 21-1922 BILIAN ARGELIO CANTE-LOPEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Barron, Chief Judge, Lynch and Gelpí, Circuit Judges. Randy Olen on brief for petitioner. Sherease Pratt, Senior Litigation Counsel, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Sheri R. Glaser, Senior Litigation Counsel, were on brief, for respondent. October 5, 2022 BARRON, Chief Judge. Bilian Argelio Cante-Lopez, a citizen of Guatemala, petitions for review of the denial by the Board of Immigration Appeals ("BIA") of his application for withholding of removal under 8 U.S.C. § 1231(b)(3). The BIA affirmed the Immigration Judge ("IJ") without opinion. The petition is dismissed due to Cante-Lopez's failure to exhaust an issue on which his challenge to the BIA's ruling depends. I. Cante-Lopez entered the United States without inspection on May 12, 2014 and was placed in removal proceedings on May 13, 2014. At his removal proceedings before the IJ in Boston, Massachusetts on December 20, 2018, he sought asylum and withholding of removal or, in the alternative, voluntary departure. The IJ denied Cante-Lopez's asylum claim and application for withholding of removal. The IJ then denied his request for voluntary departure. In denying Cante-Lopez's application for withholding of removal, the IJ determined that Cante-Lopez had not suffered past "harm rising to the level" of statutory persecution. Next, the IJ determined that Cante-Lopez had failed to establish that the harm he had suffered was on account of a statutorily protected ground. Finally, the IJ determined that, "[f]or the reasons explained above," Cante-Lopez had failed to establish that it was more likely - 2 - than not that his "life or freedom would be threatened on account of any such protected ground" in the future. Following the IJ's ruling, Cante-Lopez filed a notice of appeal with the BIA on Form EOIR-26. 8 C.F.R. § 1003.3(b). In the space provided to "[s]tate in detail the reason(s) for this appeal," Cante-Lopez stated: The Immigration Judge did deny the Respondent's applications for asylum and withholding of removal. The Immigration Judge did err in her application of the facts (multiple murders, extortions, threats) to the particular social group of family. It is submitted that the facts of record, credible facts, demonstrate that the motivation for the past persecutions to the Respondent's family was causually [sic] linked and that the motivation was kinship. Cante-Lopez then filed a two-page brief in support of his appeal to the BIA. Cante-Lopez presented the issue as follows: "Did the Immigration Judge err in failing to find that the Respondent was entitled to a grant of withholding of removal based upon his membership in a particular social group." His brief relied on what he contended was BIA precedent "establish[ing] that family may serve as a particular social group for purposes of asylum/withholding analysis" and argued that Cante-Lopez was "the latest in a long line of threatened individuals from the …

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