Demetrio Martin Chilel v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEMETRIO MARTIN CHILEL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-73090
Agency No. A079-020-976
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 16, 2022**
San Francisco, California
Before: S.R. THOMAS and GOULD, Circuit Judges, and WU,*** District Judge.
Demetrio Martin Chilel, a native and citizen of Guatemala, petitions for
review of the Board of Immigrations Appeals’ (“BIA”) dismissal of his appeal
* 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 George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
FILED
JUN 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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from an Immigration Judge’s (“IJ”) denial of his application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”).1 We have jurisdiction pursuant to 8 U.S.C. § 1252. We review
questions of law de novo and factual determinations for substantial evidence.
Amaya v. Garland, 15 F.4th 976, 986 (9th Cir. 2021).
As to withholding of removal, 8 C.F.R. § 208.16(b)(3)(i) states: “In cases in
which the applicant has not established past persecution, the applicant shall bear
the burden of establishing that it would not be reasonable for him or her to
relocate, unless the persecutor is a government or is government-sponsored.” As
to withholding of removal under CAT, the following provisions apply:
(2) The burden of proof is on the applicant for withholding of removal
under this paragraph to establish that it is more likely than not that he
or she would be tortured if removed to the proposed country of removal.
. . . .
(3) In assessing whether it is more likely than not that an applicant
would be tortured in the proposed country of removal, all evidence
relevant to the possibility of future torture shall be considered,
including, but not limited to:
. . . .
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured . . . .
8 C.F.R. § 208.16(c)(2)-(3).
Chilel claims that, should he be removed to Guatemala, he will be
1 Chilel was under a reinstated removal order and could not apply for asylum; he
could only seek withholding of removal or similar relief pursuant to CAT. See
Iraheta-Martinez v. Garland, 12 F.4th 942, 951-55 (9th Cir. 2021).

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persecuted by the family of the man (Ambrosio Chavez) who was killed by
Chilel’s father in their village when Chilel (who is now 40 years old) was seven
years old. The IJ denied relief to Chilel after concluding that: (1) Chilel’s
testimony was credible; (2) he did not establish past persecution; (3) he had a well-
founded fear of future persecution by members of Chavez’s family in the region
around his home village; and (4) safe relocation within Guatemala was reasonable.
The BIA affirmed the IJ’s decision – although the BIA specifically noted that,
while Chilel’s notice of appeal did refer to the contention that the IJ erred in her
past persecution determination, his brief did not discuss that issue at all.
Chilel failed to exhaust the IJ’s past persecution determination before the
BIA, and thus this Court lacks jurisdiction over that issue. Exhaustion of
administrative remedies is a prerequisite to our jurisdiction. See 8 U.S.C.
§ 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). When a
petitioner raises an issue in his notice of appeal to the BIA but fails to include any
argument on that matter in his brief, he “will . . . be deemed to have exhausted only
those issues he raised and argued in his brief before the BIA.” Abebe v. Mukasey,
554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam); see also Alanniz v.
Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019). Thus, we lack jurisdiction over
Chilel’s past persecution claim, as he failed to raise or discuss that issue in his brief
to the BIA.

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Substantial evidence supports the agency’s determination that internal
relocation was reasonable for Chilel. Because the IJ found that Chilel had not
established past persecution, he thus bore the burden of demonstrating that internal
relocation within Guatemala would be unreasonable for purposes of withholding of
removal. See 8 C.F.R. § 208.16(b)(3)(i). The IJ and BIA considered the totality of
the relevant circumstances regarding Chilel’s prospects for relocation within
Guatemala and concluded that Chilel could safely return to parts of his country
away from his home village.2 We find unavailing Chilel’s arguments that the
agency erred in placing the burden on him or that substantial evidence compels a
finding that relocation would not be reasonable.
Because the IJ and BIA correctly held that internal relocation was a
reasonable option for Chilel, he is not eligible for withholding of removal. See 8
C.F.R. § 208.16(b)(3)(i).
Regarding the denial of Chilel’s request for relief under CAT, we find that
because he failed to raise in his brief to this Court any argument or contentions
regarding the agency’s denial of CAT protection, he has waived them.3 See United
2 Chilel provided no evidence that any of his persecutors was a Guatemalan
governmental official or was government sponsored.
3 In any event, given our conclusion that the IJ and BIA correctly held that internal
relocation was a reasonable option for Chilel, he would not have met his burden for
CAT relief under 8 C.F.R. § 208.16(c)(2). See Tzompantzi-Salazar v. Garland, 32
F.4th 696, 704 (9th Cir. 2022) (concluding that any possibility of relocation makes

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States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005) (“Generally, an issue is
waived when the appellant does not specifically and distinctly argue the issue in
his or her opening brief.”).
PETITION DISMISSED in part, DENIED in part.
it more likely than not that the petitioner can avoid the risk of future torture, which
justifies the denial of CAT relief).

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