Oneyda Azucena Lainez-Bonilla, a native of El Salvador, sought protection from removal in the United States by applying for asylum, withholding of removal, and relief under the Convention Against Torture. An Immigration Judge denied her application, and the Board of Immigration Appeals affirmed that denial. Lainez-Bonilla petitioned the Ninth Circuit for review. However, she did not file a brief on appeal to the BIA, relying only on a statement in her Notice of Appeal. Consequently, the BIA deemed her arguments on asylum and withholding waived. She also raised an ineffective assistance of counsel claim for the first time in her petition to the federal court.
The panel addressed three distinct issues. First, regarding asylum and withholding of removal, the court held that it could not consider arguments raised for the first time on petition for review. Citing 8 U.S.C. § 1252(d)(1) and the Supreme Court's decision in Santos-Zacaria v. Garland, the court emphasized that exhaustion is a mandatory claims-processing rule. Because Lainez-Bonilla failed to file a brief or raise specific challenges before the BIA, those claims were unexhausted. Second, the court reviewed the denial of Convention Against Torture relief under the substantial evidence standard. To qualify, a petitioner must show it is more likely than not that they would be tortured by or with the acquiescence of a state actor. The court found that Lainez-Bonilla's evidence, consisting of country conditions reports on general violence and corruption, was too generalized to meet this burden. Her testimony regarding a police officer's refusal to investigate a death threat did not demonstrate that officials were aware of the threat and willfully turned a blind eye, as required by the acquiescence standard. Third, the court dismissed the ineffective assistance of counsel claim because the proper procedural vehicle to raise such a claim is a motion to reopen before the agency, not a direct petition for review.
The petition is dismissed in part and denied in part. The stay of removal remains in place until the mandate issues. The decision reinforces that immigration petitioners must strictly follow exhaustion requirements by filing briefs before the BIA to preserve asylum and withholding claims. It also clarifies that generalized evidence of crime is insufficient for CAT claims and that ineffective assistance claims must be raised via a motion to reopen, not on direct appeal.
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