Biato Rodel Ovalle-Bamaca, a Guatemalan national, sought relief from removal by applying for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An Immigration Judge denied these applications, and the Board of Immigration Appeals (BIA) affirmed that decision. Ovalle-Bamaca petitioned the Ninth Circuit for review, challenging the agency's factual findings regarding the hardship his family would face if removed to Guatemala and arguing that conditions in Guatemala had changed sufficiently to excuse his failure to file for asylum within the one-year statutory deadline. He also argued he had properly exhausted his claims for withholding of removal and CAT relief.
The panel reviewed the case de novo for legal questions and for substantial evidence regarding factual determinations. First, regarding cancellation of removal, the court held that the BIA did not err in concluding the petitioner failed to show 'exceptional and extremely unusual hardship' to his qualifying U.S. citizen children. The court noted that while uprooting children from their schools and community is significant, such hardship is present in a large proportion of removal cases and does not automatically meet the statutory threshold. Second, the court addressed the asylum timeliness bar. The petitioner claimed 'changed circumstances' because a mafia now controls Guatemala and threats were made against his father. The court found substantial evidence supported the agency's determination that the record did not compel a conclusion that a mafia controls the entire country, and thus the petitioner failed to demonstrate the required changed circumstances. Third, the court rejected the withholding of removal claim because the petitioner failed to exhaust the issue. His notice of appeal contained a general statement that he met his burden for withholding of removal, which the court found insufficient to put the BIA on notice of the specific legal arguments being challenged. Finally, regarding CAT relief, the court found no evidence that the Guatemalan government would consent to or acquiesce in the harm he feared, and the petitioner's evidence regarding his nephew's murder was not sufficiently probative to alter the agency's conclusion.
The petitioner's petition for review is denied, and his removal order remains in effect. The court denied the motion to stay removal, though a temporary stay remains in place until the mandate issues. The decision reinforces the high bar for proving 'exceptional and extremely unusual hardship' in cancellation of removal cases and clarifies that general assertions in a notice of appeal do not satisfy administrative exhaustion requirements for withholding of removal claims.
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