NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 9 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESUS PABLO DE PABLO, No. 18-72995

Petitioner, Agency No. A098-501-346

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 3, 2021** Pasadena, California

Before: OWENS and LEE, Circuit Judges, and SIMON,*** District Judge.

Petitioner Jesus Pablo de Pablo, a native and citizen of Guatemala and an

indigenous Mayan, seeks review of a decision from the Board of Immigration

* 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 Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. Appeals (BIA) affirming the denial of Petitioner’s application for withholding of

removal and for protection under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.

Here, the BIA affirmed the findings and conclusions of an Immigration

Judge (IJ) and made additional observations expressing agreement with the IJ.

Thus, we review the decisions of both the IJ and the BIA. See Kumar v. Holder,

728 F.3d 993, 998 (9th Cir. 2013). We review questions of law and legal

conclusions de novo and findings of fact for substantial evidence. See Tamang v.

Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). “Under the substantial evidence test,

we must uphold the IJ’s findings, ‘if supported by reasonable, substantial and

probative evidence on the record considered as a whole.’” Id. (quoting I.N.S. v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)). To reverse these factual findings, we

“must find that the evidence not only supports that conclusion, but compels it . . . .”

Elias-Zacarias, 502 U.S. at 481 n.1 (emphasis in original); see also Villavicencio v.

Sessions, 904 F.3d 658, 663-64 (9th Cir. 2018) (citation omitted). We conclude

that substantial evidence supports the decisions of both the IJ and the BIA.

Petitioner unlawfully entered the United States in 2004 and was removed.

He did not seek relief from removal. In 2014, Petitioner unlawfully returned to the

United States and was immediately detained. This time, Petitioner expressed a fear

of returning to Guatemala, and an asylum officer who interviewed Petitioner

2 determined that his fear was sufficiently reasonable to refer him into a

“withholding-only” proceeding before an IJ. See 8 C.F.R. §§ 208.31(a), (e), (g)(2),

241.8(e).

During that hearing, Petitioner, assisted by counsel, presented evidence that

Petitioner had supported the construction of a controversial mining venture in his

hometown and, in retaliation, was kidnapped by former guerrillas opposed to that

venture who extracted a ransom for Petitioner’s return. Petitioner also testified that

he fears the former guerillas would harm him again upon his return. Petitioner

explained that although his spouse and five children remain in Guatemala, that is

only because they do not have enough money to leave. Petitioner acknowledged

that the conflict over the specific mining venture that prompted his kidnapping has

ended.

The IJ denied Petitioner’s application for withholding of removal and for

protection under the CAT and ordered Petitioner’s removal. The IJ found that even

if Petitioner had previously expressed a “political opinion,” Petitioner had failed to

show that it was more likely than not that Petitioner would face persecution upon

return to Guatemala based on that opinion or expression. The IJ explained that the

mining venture had been abandoned, terminating the reason for Petitioner’s past

persecution. The IJ also found that Petitioner had failed to establish that “any

persecution would be done by a state actor or somebody the state is unwilling or

3 unable to control.” Although the IJ identified inconsistencies in Petitioner’s

testimony, the IJ found that the inconsistencies did not warrant an adverse

credibility finding.

The IJ also found that Petitioner failed to show that it was more likely than

not that Petitioner would be persecuted because of his military service upon

removal and return to Guatemala. After entering Petitioner’s home to kidnap him

because of his signature on the pro-mining operation petition, the former guerillas

learned of Petitioner’s military service and increased the ransom demand. The IJ,

nevertheless, found that the “real motive” of the former guerillas for targeting

Petitioner was his political opinion supporting the mining operation.

Regarding Petitioner’s torture claim, the IJ found that Petitioner had failed to

establish that a public official would torture Petitioner or acquiesce to his torture.

The IJ noted that Petitioner’s spouse and children remained in their hometown and

had not been targeted for the unpaid remainder of Petitioner’s ransom and that the

disturbance related to the mining venture had ended. The IJ also concluded that

Petitioner had not shown that he was unable to relocate within Guatemala to avoid

persecution or torture.

Petitioner appealed to the BIA, arguing that he had sufficiently shown past

persecution and therefore was eligible for withholding of removal. Petitioner,

however, did not appeal to the BIA his denial of protection under the CAT.

4 Although Petitioner’s notice of appeal identified the IJ’s decisions both to deny

withholding of removal and to deny protection under the CAT as the issues being

appealed in his brief to the BIA, Petitioner did not discuss the CAT decision, only

the denial of withholding of removal.

The BIA dismissed Petitioner’s appeal, concluding that the IJ had overcome

the presumption of future persecution by finding by a preponderance of the

evidence that there had been a “fundamental change in circumstances” such that

Petitioner’s “life or freedom would not be threatened on account of any statutorily

protected ground.” See 8 C.F.R. § 1208.16(b)(1)(i)(A). The BIA agreed with the

IJ’s reasoning, citing the cessation of the mining venture, the passage of time, and

the Guatemalan government’s apparent willingness to protect persons from future

persecution as evidenced by past arrests made in connection with civil disturbances

over mining projects. The BIA held that these factual findings were not clearly

erroneous and that Petitioner had not established a clear probability of persecution

in Guatemala. The BIA also concluded that Petitioner failed specifically to contest

and provide any argument against the IJ’s denial of protection under the CAT,

thereby waiving Petitioner’s right to appeal on that issue.

The IJ and BIA’s findings of fact are supported by substantial evidence. The

IJ and BIA’s findings that the country conditions report indicates the government

of Guatemala has taken action to prevent and punish unlawful or violent activity in

5 opposition to resource development are supported by evidence. This finding is

bolstered by the cessation of the mining venture and the related conflict in

Petitioner’s region, evidence that Petitioner’s family has not been targeted despite

Petitioner’s failure to pay the remaining unpaid portion of the ransom, and the

passage of a significant amount of time. Petitioner’s evidence does not show that a

reasonable adjudicator must conclude that Petitioner is likely to be subject to

persecution, such that the IJ and BIA’s factual determinations should be reversed.

Nor does Petitioner’s evidence show that the IJ and BIA’s findings that the passage

of time, end of the mining venture, and lack of persecution of Petitioner’s family

are erroneous. Thus, the decisions of the IJ and BIA are supported by substantial

evidence.

Finally, an issue must be raised in an appeal to the BIA to preserve that issue

for further appeal. See Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). Failure

to do so constitutes a failure to exhaust administrative remedies and deprives the

court of appeals of jurisdiction to consider that issue. Id. In general, a petitioner

waives any arguments before the appeals court when those arguments are not

stated specifically and distinctly in a petitioner’s opening brief. See Koerner v.

Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003). Here, Petitioner has waived any

appeal of the IJ’s decision regarding the CAT by not presenting his arguments

before the BIA. In addition, Petitioner did not argue that point in his opening

6 appellate brief and did not file a reply brief. Accordingly, that issue is waived.

PETITION FOR REVIEW DENIED.

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