Eva Cruz v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVA CRUZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1144
Agency No.
A201-148-694
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 15, 2023**
Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.
Eva Cruz, a native and citizen of Mexico, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her applications for asylum 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).
FILED
AUG 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review
de novo questions of law. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir.
2016). We deny the petition for review.
Because Cruz does not challenge the agency’s determinations that her
returnee-based particular social group is not cognizable and that she otherwise
failed to establish nexus to a protected ground, we do not address them. See
Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013).
The BIA did not err or violate Cruz’s right to due process by declining to
consider her family-based particular social group that was raised for the first time
to the BIA. See Honcharov v. Barr, 924 F.3d 1293, 1296-97 (9th Cir. 2019) (BIA
did not err in declining to consider argument raised for the first time on appeal);
see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to
prevail on a due process claim). To the extent Cruz argues the merits of her
family-based claim, we do not address them. See Santiago-Rodriguez v. Holder,
657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we
consider only the grounds relied upon by that agency.”) (citation and internal
quotation marks omitted).
Cruz has not otherwise established that the BIA violated her right to due
process. See Lata, 204 F.3d at 1246.
Cruz’s contentions that the IJ violated her right to due process is not

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properly before the court because she failed to raise it before the BIA. See 8
U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also
Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1113-14 (2023) (section 1252(d)(1) is
a non-jurisdictional claim-processing rule).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.

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