Nelson Vazquez Renoj v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON VAZQUEZ RENOJ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71910
Agency No. A208-117-638
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Nelson Vazquez Renoj, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
* 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).
FILED
JAN 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-
85 (9th Cir. 2006). We deny in part, dismiss in part, and grant in part the petition
for review, and we remand.
In his opening brief, Vazquez Renoj does not challenge the BIA’s
determination that he waived any challenge to the IJ’s dispositive nexus
determination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.
1996) (issues not specifically raised and argued in a party’s opening brief are
waived). We lack jurisdiction to consider the particular social group that Vazquez
Renoj raises for the first time in his opening brief. See Barron v. Ashcroft, 358
F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not
presented below). Thus, Vazquez Renoj’s asylum and withholding of removal
claims fail.
As to the denial of Vazquez Renoj’s CAT claim, the agency appears to have
relied only on the determination that Vazquez Renoj failed to demonstrate that
torture would be by or with the consent or acquiescence of a public official or other
person acting in an official capacity. Substantial evidence does not support that
determination because the record demonstrates that Vazquez Renoj was extorted
and threatened with death by a police officer. See Barajas-Romero v. Lynch, 846
F.3d 351, 362 (9th Cir. 2017) (“[T]he [CAT] regulation does not require that the

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public official be carrying out his official duties, so long as he is the actor or
knowingly acquiesces in the acts.”). Thus, we grant the petition for review and
remand Vazquez Renoj’s CAT claim to the BIA for further proceedings consistent
with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Vazquez Renoj requests remand to apply for post-conclusion voluntary
departure. Although the claim is unexhausted, the BIA would not have had the
benefit of our decision in Posos-Sanchez v. Garland, 3 F.4th 1176, 1185 (9th Cir.
2021), holding that “a noncitizen builds up physical-presence time under [8
U.S.C.] § 1229c(b)(1)(A) from the moment he enters the United States until the
moment he receives a single document that provides him with all the information
Congress listed in 8 U.S.C. § 1229(a)—i.e., a § 1229(a) NTA”, even if Vazquez
Renoj had raised the claim below. Thus, the futility exception excuses Vazquez
Renoj’s failure to exhaust his voluntary departure claim. See Vasquez-Rodriguez v.
Garland, 7 F.4th 888, 896 (9th Cir. 2021) (“‘[w]here the agency’s position
‘appears already set’ and recourse to administrative remedies is ‘very likely’ futile,
exhaustion is not required.’” (citation omitted)). Accordingly, we grant the
petition for review as to Vazquez Renoj’s voluntary departure claim and we
remand for the BIA to consider the claim, if necessary, in light of Posos-Sanchez.
See Ventura, 537 U.S. at 16-18.

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Each party must bear its own costs on appeal.
The motion for a stay of removal is granted. Vazquez Renoj’s removal is
stayed pending a decision by the BIA.
PETITION FOR REVIEW DENIED in part; DISMISSED in part;
GRANTED in part; REMANDED.

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