Juan Carrasco-Cervantes v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARRASCO-CERVANTES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72167
Agency No. A213-080-799
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 21, 2023**
San Francisco, California
Before: BUMATAY, KOH, and DESAI, Circuit Judges.
Partial Dissent by Judge BUMATAY.
Juan Carrasco-Cervantes (“Carrasco-Cervantes”), a native and citizen of
Mexico, petitions this court for review of a decision of the Board of Immigration
Appeals (“BIA”) affirming the denial by an immigration judge (“IJ”) of his
* 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 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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applications for asylum and withholding of removal. We have jurisdiction under 8
U.S.C. § 1252. We deny the petition in part and grant and remand in part for
proceedings consistent with this disposition.
1. The IJ denied Carrasco-Cervantes’s asylum application upon finding
that Carrasco-Cervantes did not establish that an exception to the one-year filing
deadline applied, see 8 U.S.C. § 1158(a)(2)(B), (D); 8 C.F.R. § 1208.4(a)(2), (4)–
(5), and Carrasco-Cervantes failed to challenge that finding before the BIA.
Because we agree with the government that this issue is unexhausted, we deny the
petition for review as to the asylum claims. See Umana-Escobar v. Garland, 69
F.4th 544, 550 (9th Cir. 2023); see also Santos-Zacaria v. Garland, 143 S. Ct.
1103, 1112–14 (2023) (exhaustion requirement is not jurisdictional).
2. We remand for further proceedings on the withholding of removal
claims. The BIA stated that it found no clear error in the IJ’s finding that
Carrasco-Cervantes did not establish that any past or feared future harm was on
account of a protected ground. After the BIA’s decision and the briefing in this
case, this court made clear for the first time that “the BIA must review de novo
whether a persecutor’s motives meet the nexus legal standards.” Umana-Escobar,
69 F.4th at 552.1 Therefore, remand is warranted for the BIA to apply the proper
1 Even if, as the dissent suggests, that argument already followed from a BIA
decision and a Department of Justice guidance, forfeiture is a discretionary
doctrine. “[W]e may exercise discretion to consider a waived issue in certain

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standard. Id.
The internal relocation finding is not an alternative, independent basis on
which to uphold the BIA’s decision as to withholding of removal. In the
withholding context, the burden as to internal relocation shifts depending on
whether an applicant has established past persecution. See 8 C.F.R.
§ 1208.16(b)(1)(i)–(ii); Singh v. Garland, 57 F.4th 643, 658 (9th Cir. 2022). The
question of past persecution was resolved on nexus grounds, and we do not have a
nexus determination from the BIA under the proper standard of review. Therefore,
“the relocation determination is not dispositive” in this case. Singh, 57 F.4th at
658.
PETITION DENIED IN PART AND GRANTED IN PART;
REMANDED.2
cases, one such case being when the issue presented is a pure question of law,” as
it is here. Wong v. Flynn-Kerper, 999 F.3d 1205, 1214 n.11 (9th Cir. 2021)
(quoting Self-Realization Fellowship Church v. Ananda Church of Self-
Realization, 59 F.3d 902, 912 (9th Cir. 1995)).
2 The parties shall bear their own costs.

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Carrasco-Cervantes v. Garland, No. 20-72167
BUMATAY, Circuit Judge, dissenting in part:
I concur with denying the petition for Juan Carrasco-Cervantes’s asylum
claim. But I would also deny the petition on his withholding of removal claim.
While it may appear that the Board of Immigration Appeals applied the wrong
standard of review to the nexus element of his withholding of removal claim,
Carrasco-Cervantes never raised this argument before this court.
We established long ago that “we will not ordinarily consider matters on
appeal that are not specifically and distinctly argued in appellant’s opening
brief.” United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (simplified). This
case is a classic example of forfeiture. Carrasco-Cervantes raised three issues in his
opening brief and none of them challenged the standard of review applied by the
BIA. He didn’t address the issue in a reply brief or even in any post-briefing filing.
The government never said a peep about it either. So we raised this issue sua sponte.
And there’s no good reason to excuse Carrasco-Cervantes’s failure to properly
raise this challenge. As we recently said, this has been the law for over twenty years.
See Umana-Escobar v. Garland, 69 F.4th 544, 552 (9th Cir. 2023). In Umana-
Escobar, we pointed out that the BIA determined “that the nexus determination is a
legal determination subject to de novo review” in a published decision back in 2008.
Id. (citing Matter of S-E-G-, 24 I. & N. Dec. 579, 588 n.5 (BIA 2008)). In turn, we
noted that the BIA’s decision was predicated on a Department of Justice guidance
FILED
AUG 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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from 2002. Id. (citing Board of Immigration Appeals: Procedural Reforms To
Improve Case Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002)). In other
words, the argument that the BIA should have applied a de novo standard of review
to the nexus determination wasn’t novel and was fully available to Carrasco-
Cervantes before briefing in this case. Under these facts, he is not entitled to a sua
sponte remand.
I respectfully dissent from the partial grant of the petition of review.

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