Walther Alexan Cardoza Franco; v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTHER ALEXAN CARDOZA
FRANCO; et al.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-1019
Agency Nos.
A201-591-544
A201-591-546
A201-591-545
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
January 17, 2024**
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
Walther Alexan Cardoza Franco, Rebeca Zavaleta Castro, and Zavaleta
Castro’s minor son, natives and citizens of El Salvador, petition pro se for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from
* 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).
FILED
JAN 24 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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an immigration judge’s (“IJ”) decision denying their applications for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238,
1241 (9th Cir. 2020). We deny the petition for review.
Because petitioners do not challenge the BIA’s determination that they
waived the IJ’s dispositive finding that they did not establish the Salvadoran
government was or would be unable or unwilling to protect them from the private
actors they fear, we do not address it. See Lopez-Vasquez v. Holder, 706 F.3d
1072, 1079-80 (9th Cir. 2013). To the extent petitioners address the merits of this
determination, their contentions are not properly before the court because they
failed to raise them before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of
administrative remedies required); see also Santos-Zacaria v. Garland, 598 U.S.
411, 417-19 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing
rule). Thus, petitioners’ asylum and withholding of removal claims fail.
Substantial evidence supports the agency’s denial of CAT protection
because petitioners failed to show it is more likely than not they will be tortured by
or with the consent or acquiescence of the government if returned to El Salvador.
See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

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The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.

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