Baires Rivas v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE WILSON BAIRES RIVAS, No. 22-386 Agency No. Petitioner, A208-458-787 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 19, 2023** Pasadena, California Before: PAEZ and H.A. THOMAS, Circuit Judges, and COLLINS, District Judge.*** Jose Wilson Baires Rivas, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of an * 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). *** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. immigration judge’s (“IJ”) denial of his application for asylum and withholding of removal.1 Baires Rivas specifically challenges the agency’s determination that he failed to establish past persecution. We have jurisdiction under 8 U.S.C. § 1252 and review the agency’s factual findings for substantial evidence. See Duran- Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We deny the petition. Baires Rivas argues that he suffered past persecution on account of his political opinion and particular social group of witnesses to crimes after he was threatened on two separate occasions in El Salvador. First, Baires Rivas was accosted by members of the Farabundo Martí National Liberation Front (“FMLN”) for his support of the National Republican Alliance political party (“ARENA”), and later was physically threatened with a knife by other FMLN members for his failure to vote in favor of a FMLN candidate. Second, after witnessing two individuals stab a man, Baires Rivas and his aunt were confronted by two masked men with a firearm, who demanded that they never return to the scene of the crime 1 Baires Rivas also petitions for review of his claim for protection under the Convention Against Torture (“CAT”), but he failed to raise this claim before the BIA. Because the Government raised Baires Rivas’s failure to exhaust his claim in its Answering Brief, we must enforce this “claim-processing rule” and may not review Baires Rivas’s CAT claim. Santos-Zacaria v. Garland, 598 U.S. 411, 416– 23 (2023) (clarifying that while 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is not jurisdictional, it is a “claim-processing rule” that is mandatory); Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849 (2019) (“A claim-processing rule may be ‘mandatory’ in the sense that a court must enforce the rule if a party ‘properly raise[s]’ it.” (citation omitted)). 2 22-386 again. Baires Rivas and his aunt subsequently filed a police report and then fled to the United States. He suspects that both groups were members of the gang Mara Salvatrucha, commonly known as MS-13, on account of their attire and appearance as well as …

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