Dania Pascacio Pacheco v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIA PASCACIO PACHECO, et al.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1858
Agency Nos.
A215-818-828
A215-818-829
A215-818-830
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 4, 2023
Submission Vacated February 12, 2024
Resubmitted April 19, 2024
Seattle, Washington
Before: N.R. SMITH, SANCHEZ, and MENDOZA, Circuit Judges.
Dania Pascacio Pacheco and her minor children A.X.Q.P. and R.Q.P.,
natives and citizens of Mexico, petition for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of their
petitions for asylum, withholding of removal, and protection under the Convention
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
APR 19 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. “Where
the BIA conducts its own review of the evidence and law, rather than adopting the
IJ’s decision, our review is limited to the BIA’s decision, except to the extent the
IJ’s opinion is expressly adopted.” Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th
Cir. 2012) (internal quotation marks and citation omitted). Reviewing the BIA’s
factual findings for substantial evidence and its legal conclusions de novo, see
Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022), we deny the petition.
1. The BIA did not err in finding that Pascacio Pacheco waived her
challenge to the IJ’s denial of relief under CAT. A “failure to raise an issue in an
appeal to the BIA constitutes a failure to exhaust remedies with respect to that
question.” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (cleaned up),
abrogated in part by Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023). Because
Pascacio Pacheco did not raise any argument to the BIA challenging the IJ’s CAT
determination, she has waived her claim for relief under CAT. See Alanniz v.
Barr, 924 F.3d 1061, 1069, fn. 8 (9th Cir. 2019).
2. The BIA erred in finding that Pascacio Pacheco waived her challenge
regarding the objective reasonableness of her fear of future persecution.
Exhaustion does not require precise legal terminology or a well-developed
argument, but rather that the issue be put before the agency. See Martinez v. Barr,
941 F.3d 907, 922 (9th Cir. 2019). In her agency brief to the BIA, Pascacio

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Pacheco explicitly raised arguments regarding her objective fear of future harm by
her husband, and cited to both credible testimony and expert opinion evidence on
domestic violence.
3. The BIA found that even if Pascacio Pacheco had not waived her
challenge to the IJ’s well-founded fear determination, Pascasio Pacheco did not
meet her burden to establish that the Mexican government was unable and
unwilling to protect her. Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.
2010) (when alleging past persecution by non-government entities, a petitioner has
the burden of establishing that the persecution was committed “by forces that the
government was unable or unwilling to control.”). The BIA’s finding is supported
by substantial evidence.
Substantial evidence supports the BIA’s finding that country conditions
evidence, including reports on domestic violence legislation in Mexico and its
implementation, reflects the Mexican government’s efforts to intervene in
domestic violence cases. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th
Cir. 2020) (holding that “substantial evidence supports the agency’s determination
that, had [petitioner] reported her abuse, the Guatemalan government could have
protected her” from her abusive ex-boyfriend even though “the State Department
reports make clear that Guatemala still has a long way to go in addressing domestic
violence”). Substantial evidence also supports the BIA’s finding that reporting to

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the police would not have been futile. Although “[w]hether a victim has reported
or attempted to report violence or abuse to the authorities is a factor that may be
considered,” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th Cir. 2017),
reporting is not required where an applicant “can convincingly establish that doing
so would have been futile or have subjected h[er] to further abuse,” Ornelas-
Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, the record does
not compel the conclusion that it would have been futile for Pascacio Pacheco to
report the incidents of domestic violence to the Mexican authorities.1 See Castro-
Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).
PETITION DENIED.
1 Pascacio Pacheco argues that the BIA denied her due process by not reaching her
additional appellate arguments regarding past persecution, nexus, and whether her
proposed particular social groups were cognizable. “As a general rule courts and
agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.” INS v. Bagamasbad, 429 U.S. 24, 25
(1976). Because the BIA affirmed the denial on two dispositive issues, the BIA
was not required to reach Pascacio Pacheco’s alternative arguments.

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