FILED

NOT FOR PUBLICATION

FEB 17 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO BONNET, No. 20-73634

Petitioner, Agency No. A215-829-242

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 14, 2022** San Francisco, California

Before: GOULD and RAWLINSON, Circuit Judges, and ADELMAN,*** District Judge.

* 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 Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. Petitioner Roberto Bonnet (Bonnet), a native and citizen of Haiti, petitions

for review of a decision from the Board of Immigration Appeals (BIA) dismissing

his appeal from the denial of his applications for asylum, withholding of removal,

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

under 8 U.S.C. § 1252 and deny the petition.

“We review the denial of asylum, withholding of removal and CAT claims

for substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.

2019) (citations omitted). “Under this standard, we must uphold the agency

determination unless the evidence compels a contrary conclusion.” Id. (citation

omitted).

1. The Immigration Judge (IJ) denied Bonnet’s asylum claim because his

application was time barred. Withholding of removal was denied because: (1)

Bonnet failed to establish past persecution, a threat of future persecution, or a

nexus between Bonnet’s accused harm and a protected ground; and (2) Bonnet’s

battery conviction constituted a particularly serious crime. The BIA adopted and

affirmed the IJ’s decisions under Matter of Burbano, 20 I&N Dec. 872, 874 (BIA

1994). Thus, we review the IJ’s order as if it were the BIA’s. See Kwong v.

Holder, 671 F.3d 872, 876 (9th Cir. 2011).

2 2. Bonnet does not challenge the determination that he failed to file a timely

asylum application or that he failed to establish past persecution, fear of future

persecution, or nexus between the asserted harm and a protected ground.

Therefore, any arguments regarding these matters are waived. See Fakhry v.

Mukasey, 524 F.3d 1057, 1062 (9th Cir. 2008) (stating that an asylum application

must be filed within one year of arrival in the United States); see also

Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th Cir. 1996) (explaining that

issues not argued in the petitioner’s opening brief are waived).

3. The IJ’s alternative determination of Bonnet’s ineligibility for

withholding of removal due to his conviction for a particularly serious crime was

not an abuse of discretion. See Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir.

2019); see also Arbid v. Holder, 700 F.3d 379, 385 (9th Cir. 2012), as amended

(reviewing for abuse of discretion).

Bonnet’s contention that the IJ failed to consider evidence related to the

“type of sentence imposed” lacks merit. The IJ stated Bonnet’s sentence on the

record and explained that it considered the sentence as a factor. See Arbid, 700

F.3d at 385 (concluding that there was no abuse of discretion when the IJ

considered the Frentescu factors in making the particularly serious crime

determination); see also Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982).

3 4. Bonnet does not address in his Opening Brief the agency’s denial of CAT

relief and has thus waived any challenge to that decision. See Martinez-Serrano,

94 F.3d at 1259-60.

5. Bonnet contends that the IJ violated his due process rights by: (1) not

providing a Creole translator at every hearing, and (2) not apprising Bonnet of his

right to call witnesses to testify on his behalf. Bonnet did not raise this argument

in his brief to the BIA, and the BIA did not address this issue. Thus, the issue was

not properly exhausted, and we lack jurisdiction to address it. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); see also Agyeman v. I.N.S., 296 F.3d

871, 877 (9th Cir. 2002).

The petition is DENIED as to Bonnet’s claims for asylum, withholding of

removal, and CAT relief.

The petition is DISMISSED as to Bonnet’s due process claims.

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