Marcelo Emerson Vavrik; Andreia Vavrik v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCELO EMERSON
VAVRIK; ANDREIA VAVRIK,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-941
Agency Nos. A210-018-051
A210-018-052
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2023**
San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and BENNETT***,
District Judge.
Petitioners Marcelo Emerson Vavrik and Andreia Vavrik are natives and
* 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 Richard D. Bennett, United States District Judge of
Maryland, sitting by designation.
FILED
MAY 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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citizens of Brazil.1 They petition for review of a Board of Immigration Appeals
(“BIA”) order dismissing their applications for cancellation of removal and
asylum and Marcelo’s application for withholding of removal and protection
under the Convention Against Torture (“CAT”).2 Because we lack jurisdiction
pursuant to 8 U.S.C. § 1252(d)(1), we dismiss the petition for review.
Petitioners’ opening brief makes two arguments, both of which relate to
the denial of their application for cancellation of removal. First, Petitioners
argue that the IJ erred by continuing their July 11, 2014 hearing. Second,
Petitioners argue that the IJ erred in relying on their criminal histories from the
California Law Enforcement Telecommunication System (“CLETS”) when
denying their applications for cancellation of removal.3
But Petitioners did not make these arguments before the IJ or BIA. “A
petitioner's failure to raise an issue before the BIA generally constitutes a failure
to exhaust, thus depriving this court of jurisdiction to consider the issue.” Sola
v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (citation omitted); 8 U.S.C.
§ 1252(d)(1) (“A court may review a final order of removal only if . . . the alien
1 The petitioners are married. To avoid confusion, we refer to them
by their first names.
2 Both petitioners filed separate applications for cancelation of
removal. Marcelo applied for asylum and listed Andreia as a derivative
beneficiary. See 8 U.S.C. § 1158(b)(3); 8 C.F.R. § 1208.3(a). Andreia did not
file an application for withholding of removal or protection under the CAT.
3 As part of this argument, Petitioners allege that federal agencies
acted in violation of California law in accessing the CLETS information.

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has exhausted all administrative remedies available to the alien as of right.”).
Therefore, these arguments are unexhausted, and we lack jurisdiction to
consider them.
PETITION FOR REVIEW DISMISSED.

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