Vital Antonio Barreiro v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VITAL ANTONIO BARREIRO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72125
Agency No. A094-302-316
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2022**
San Jose, California
Before: SCHROEDER, GRABER, and FRIEDLAND, Circuit Judges.
Petitioner Vital Antonio Barreiro, a native and citizen of El Salvador, timely
seeks review of the Board of Immigration Appeals’ (“BIA”) dismissal of his
appeal of an immigration judge’s entry of a final order of removal. For the reasons
that follow, we dismiss in part and deny in part the petition.
* 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
NOV 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. Because Petitioner failed to exhaust to the BIA his new claim that the
immigration judge denied him a full and fair hearing, we lack jurisdiction to
consider the argument. Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009).
2. Because Petitioner failed to exhaust to the BIA his argument that the
notice to appear was defective and therefore deprived the agency of jurisdiction,
we lack jurisdiction to consider the argument. Ruiz-Colmenares v. Garland, 25
F.4th 742, 748 (9th Cir. 2022); see also United States v. Bastide-Hernandez, 39
F.4th 1187, 1190–94 (9th Cir. 2022) (en banc) (holding that a defective notice to
appear does not deprive the agency of jurisdiction).
3. Substantial evidence supports the BIA’s ruling that Petitioner failed to
establish past persecution or a well-founded fear of future persecution on account
of a protected ground. Gang members harmed Petitioner’s uncle, but no evidence
suggests that they harmed him because of his membership in the family.1 The
record does not compel the conclusion that Petitioner showed a nexus between his
1 In his opening brief, Petitioner’s lawyer asserts that, in addition to Petitioner’s
uncle being harmed, Petitioner’s cousin also was harmed. That assertion
contradicts the record. Petitioner testified that his female cousin is the one who
told him about the harm that Petitioner’s uncle suffered. But nothing in the record
suggests that anyone other than his uncle was harmed. All the testimony about
harm uses male pronouns, and Petitioner’s response to whether anyone else other
than his uncle was harmed removes all doubt: “Just him, just him.” The
government pointed out this misreading in the answering brief, Petitioner’s lawyer
did not respond in the reply brief. Instead, the reply brief simply repeats the same
assertions, citing the same pages of the record.

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feared harm and a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1015–
16 (9th Cir. 2010) (upholding the BIA’s determination that the petitioner failed to
show a nexus to a protected ground where bandits harmed the petitioner’s family
members for economic reasons). We therefore deny the petition to the extent that
it challenges the agency’s denial of asylum and withholding of removal.
4. Substantial evidence supports the denial of relief under the Convention
Against Torture. The record does not compel the conclusion “that it is more likely
than not that [Petitioner] would be tortured” if returned to El Salvador. 8 C.F.R. §
1208.16(c)(2).
PETITION DISMISSED IN PART AND DENIED IN PART.

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