Background
The petitioner, a native of Mexico, entered the United States unlawfully and applied for asylum, withholding of removal, and protection under the Convention Against Torture. He claimed fear of harm from a vigilante group and discrimination based on his sexual orientation. The Immigration Judge denied his applications, finding no nexus to a protected ground and that internal relocation was reasonable. The Board of Immigration Appeals dismissed his appeal, and he petitioned the Ninth Circuit for review.
The court’s reasoning
The panel concluded that the petitioner forfeited all exhausted bases to challenge the agency’s decision because he failed to make any argument in his opening brief that the Board or Immigration Judge erred on the merits. Regarding his sole remaining argument, the panel held that he failed to exhaust his procedural due process claims before the Board. The petitioner’s assertion that he preserved his due process challenge by describing the Immigration Judge’s decision as wrongfully made was insufficient to alert the Board to the specific arguments he now raised.
Santana has forfeited these issues and arguments, which appear meritless in any event.
Opinion at 8
What it means going forward
The decision reinforces the requirement that petitioners must explicitly raise and argue all claims before the Board of Immigration Appeals to preserve them for judicial review. It also highlights ongoing judicial criticism within the Ninth Circuit regarding automatic stays of removal that delay enforcement for meritless claims.