MARIA GUADALUPE RAMIREZ- VALENZUELA, AKA Josephina Cardona- Mendosa v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA GUADALUPE RAMIREZ-
VALENZUELA, AKA Josephina Cardona-
Mendosa,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72262
Agency No. A215-854-149
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 1, 2022**
Before: FRIEDLAND, SANCHEZ, and H. THOMAS, Circuit Judges.
Maria Guadalupe Ramirez-Valenzuela, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an immigration judge’s (“IJ”) decision denying her
* 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
JUN 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2 19-72262
applications for asylum, withholding of removal, protection under the Convention
Against Torture (“CAT”), and cancellation of removal.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except
to the extent that deference is owed to the BIA’s interpretation of the governing
statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
We also review de novo whether a petitioner has been afforded due process.
Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006). We deny the
petition for review in part and dismiss it in part.
We lack jurisdiction to consider issues that a petitioner fails to exhaust in the
agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). Many of
the arguments Ramirez-Valenzuela makes were not exhausted.
Ramirez-Valenzuela contends that the BIA erred by determining that she
had waived any challenge to the IJ’s denial of asylum, withholding of removal, and
CAT protection because the lack of any argument on those issues in her brief to the
BIA should not be construed as a waiver. But the BIA can deem an issue waived
when there is no argument developed in an appellant’s brief. See Alanniz v. Barr,
924 F.3d 1061, 1068-69 (9th Cir. 2019) (concluding that the BIA did not err in
concluding that the petitioner waived an issue where a review of the brief to the
BIA confirmed that he did not make an argument about that issue). Our review of

-- 2 of 4 --

3 19-72262
Ramirez-Valenzuela’s brief to the BIA confirms the agency’s analysis. We
therefore deny the petition as to Ramirez-Valenzuela’s contentions concerning the
BIA’s waiver determination and dismiss the petition as to her contentions
concerning those forms of relief.
We similarly lack jurisdiction to consider Ramirez-Valenzuela’s contentions
that the IJ denied her due process by failing to adequately explain immigration
procedures and other topics. The BIA could have addressed any such issues had
the issues been before it, so Ramirez-Valenzuela was required to exhaust them.
See Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (“The exhaustion
requirement applies to claims that an [applicant] was denied a full and fair
hearing.”) (citation and internal quotation marks omitted).
Our review is limited to the grounds the BIA actually relied on. See Andia v.
Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004). The BIA’s determination was
based on whether Ramirez-Valenzuela had shown that her children would suffer
exceptional and extremely unusual hardship, so we cannot reach her arguments
concerning whether the IJ erred by concluding that her criminal history makes her
ineligible for cancellation of removal. We lack jurisdiction over the agency’s
hardship determination because that determination is not reviewable. See Romero-
Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003).
We deny the petition as to Ramirez-Valenzuela’s remaining claims. First,

-- 3 of 4 --

4 19-72262
the record does not support Ramirez-Valenzuela’s contention that the IJ failed to
adequately develop the factual record when Ramirez-Valenzuela was pro se. See
Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (“[T]he proceeding was not
so fundamentally unfair that [the applicant] was prevented from reasonably
presenting [her] case.”).
Second, the IJ was required to give Ramirez-Valenzuela “reasonable time to
locate counsel and permit counsel to prepare for the hearing.” Arrey v. Barr, 916
F.3d 1149, 1158 (9th Cir. 2019). The IJ’s decision not to further continue
proceedings is reviewed for abuse of discretion. Id. In the context of this
proceeding, where the IJ advised her of her right to obtain counsel and gave her
several opportunities to do so, the denial of Ramirez-Valenzuela’s motion to
further continue the proceedings was not an abuse of discretion.
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

-- 4 of 4 --