Javier Santoyo Soriano, his wife Gladys Navarro Rojas, and their five minor children sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) after facing threats in Mexico. The Immigration Judge and the Board of Immigration Appeals (BIA) denied their applications. The petitioners argued they faced harm due to their family membership and the health condition of their child, while the government contended the harm was driven by criminal greed. The Ninth Circuit reviewed the BIA's factual findings to determine if they were supported by substantial evidence and whether the petitioners had properly exhausted all legal arguments before the agency.
The panel applied the substantial evidence standard, which requires that the BIA's findings be conclusive unless any reasonable adjudicator would be compelled to conclude otherwise. First, the court addressed the nexus requirement for asylum and withholding of removal. The record showed that the gang Los Viagras targeted the petitioners solely for pecuniary gain after learning they received government subsidies and owned livestock. The court cited Zetino v. Holder, noting that a desire to be free from harassment by criminals motivated by theft bears no nexus to a protected ground. Second, the court addressed the claim regarding the child's cerebral palsy. Under 8 U.S.C. § 1252(d)(1), petitioners must exhaust claims before the BIA to raise them in court. The court found that the petitioners' brief to the BIA never argued that the child's disability constituted past persecution or a well-founded fear of future persecution. Because the BIA was not put on notice of this specific challenge, the claim was not exhausted. The court also noted that the petitioners waived any challenge to the dismissal of these claims by failing to raise the issue in their opening brief to the Ninth Circuit. Finally, regarding CAT protection, the court found substantial evidence supported the BIA's denial because the petitioners failed to show that a public official would consent to or acquiesce in future torture. The petitioners waived this argument by not addressing the BIA's no-acquiescence finding in their brief.
The BIA's order dismissing the petitioners' applications for asylum, withholding of removal, and CAT protection remains in full effect. The decision reinforces the strict requirement that asylum claims must be based on a protected ground rather than criminal greed, and it underscores the necessity of raising all specific legal theories before the BIA to preserve them for appellate review. No remand instructions were issued as the petition was denied.
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