FILED

NOT FOR PUBLICATION

FEB 13 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDHER LOPEZ-ARAISA, No. 20-72860

Petitioner, Agency No. A214-014-476

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 9, 2023** Phoenix, Arizona

Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.

Edher Lopez-Araisa petitions for review of a Board of Immigration Appeals’

(BIA) order dismissing his appeal from an Immigration Judge’s (IJ) decision

denying his motion to terminate and his applications for asylum, withholding of

* 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). removal, and protection under the Convention Against Torture (CAT). Our

jurisdiction arises under 8 U.S.C. § 1252, and we deny in part and dismiss in part

the petition for review.

1. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), Lopez-Araisa argues

that the agency erred by denying his motion to terminate his removal proceedings

because his defective Notice to Appear (NTA) deprived the agency of jurisdiction

to enter a removal order. Though Lopez-Araisa’s NTA did not provide a time or

date, the Department of Homeland Security later sent Lopez-Araisa notices of

hearing that specified the time and date of his removal proceedings. Lopez-

Araisa’s argument is therefore foreclosed by our decision in United States v.

Bastide-Hernandez, which held that “the failure of an NTA to include time and

date information does not deprive the immigration court of subject matter

jurisdiction.” 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc), cert. denied, No. 22-

6281, 2023 WL 350056 (U.S. Jan. 23, 2023).

2. We dismiss the petition for review to the extent that it challenges the

denial of asylum and withholding of removal because Lopez-Araisa did not dispute

before the BIA the IJ’s adverse credibility finding, untimeliness determination, or

finding of a lack of corroboration, and the BIA considered those issues waived as a

result. Lopez-Araisa argues that we can reach these issues nevertheless because

2 the BIA, citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994), stated that it

agreed with the IJ’s reasoning and adopted and affirmed the IJ’s decision. When,

as here, the BIA explicitly declines to reach an unexhausted issue, we interpret the

BIA’s citation to Burbano to incorporate only the portions of the IJ’s decision that

the BIA decided on the merits. See Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th

Cir. 2005) (en banc) (considering exhaustion requirement satisfied when the BIA

adopted an IJ’s decision in full “without saying that it limited the scope of its

decision to [certain grounds]” because “[t]he BIA is presumably aware of its ability

to decline to review an argument when a petitioner has not properly raised the

argument on appeal to the BIA”); id. (holding that we have jurisdiction over an

unexhausted issue “[w]hen the BIA has ignored a procedural default” (emphasis

added)). Because we lack jurisdiction to consider these unexhausted issues, 8

U.S.C. § 1252(d)(1), we dismiss these parts of the petition.

3. Substantial evidence supports the agency’s denial of Lopez-Araisa’s CAT

claim. Lopez-Araisa argued before the agency that country conditions reports

establish that police in Mexico have committed atrocious crimes and work in

tandem with drug cartels. But “generalized evidence of violence and crime in

Mexico is not particular to [a] [p]etitioner[] and is insufficient to meet [the CAT]

standard.” Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Lopez-

3 Araisa failed to meet his burden of showing that he in particular has been tortured

in Mexico or would be tortured there if he returns. See 8 C.F.R. § 208.16(c)(2) &

(3)(i). Notably, his maternal aunt continued to reside in Tijuana for years without

incident after the alleged kidnapping, which significantly undercuts his claim that

he would more likely than not be tortured if he returns to Mexico.

The stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DISMISSED in part and DENIED in part.

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