Valencia v. Blanche
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 23, 2026
Docket24-3052
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 23 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS AMADO VALENCIA- No. 24-3052
VALENCIA et al.,
Agency Nos.
Petitioners, A240-261-323
A220-960-273
v. A220-960-274
A220-960-275
TODD BLANCHE, Attorney General,
Respondent. MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2026**
San Francisco, California
Before: CALLAHAN and LEE, Circuit Judges, and EZRA,*** District Judge.
Petitioner Carlos Amado Valencia-Valencia, his wife Katherine Portocarrero-
Rios, and their two minor children M.P. and L.P. challenge the Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Appeals’ (“BIA”) dismissal of their appeal. They petition for review of the BIA’s
affirmance of an Immigration Judge’s (“IJ”) decision denying their applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. “Our review is
limited to those grounds explicitly relied upon by the [BIA].” Diaz-Reynoso v. Barr,
968 F.3d 1070, 1075 (9th Cir. 2020) (quoting Budiono v. Lynch, 837 F.3d 1042,
1046 (9th Cir. 2016)). “Where the BIA writes its own decision, as it did here, we
review the BIA’s decision, except to the extent it expressly adopts the IJ’s decision.”
Id. at 1075–76 (quoting Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012)).
“[T]he BIA is entitled to look to the brief for an explication of the issues that
petitioner is presenting to have reviewed,” and a failure to include an issue in one’s
brief to the BIA constitutes waiver. Abebe v. Mukasey, 554 F.3d 1203, 1207–08 (9th
Cir. 2009) (en banc). The Court reviews de novo the BIA’s determination that an
issue was waived. Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019). And “[a]
panel may only affirm on the grounds set forth in the BIA’s decision.” Diaz
Reynoso, 968 F.3d at 1088.
1. The Government argues that Petitioners’ waiver of dispositive issues before
the BIA is determinative here. The Government is correct. See Abebe, 554 F.3d at
1207–08. The BIA did not err when it determined that Petitioners had waived their
ability to challenge certain dispositive issues on appeal. This is because Petitioners
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proposed a cognizable particular social group (“PSG”) (or a different protected
ground of their eligibility for asylum and withholding of removal) for the first time
on appeal to BIA. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per
curiam) (“[T]he Board did not err when it declined to consider [the petitioner’s]
proposed particular social groups that were raised for the first time on appeal.”)).
2. Additionally, Petitioners’ opening brief in this Court did not meaningfully
challenge the BIA’s findings on the two new PSGs they described—i.e., (1) a
“person taking concrete steps to oppose gang activity and gang persecution” and (2)
“victims of gang violence and persecution.” They had previously waived the ability
to challenge the IJ’s PSG determination by omitting any such challenge from their
briefing to the BIA. See Matter of R-A-M-, 25 I. & N. Dec. 657, 658 n.2 (BIA 2012).
This Court cannot now review the dispositive issues that were waived before the
BIA. Id.; see also Bingxu Jin v. Holder, 748 F.3d 959, 964 n.2 (9th Cir. 2014).
Petitioners also waived their CAT claim because they did not meaningfully
challenge the agency’s finding that the Colombian government would not acquiesce
to any future torture. Accordingly, the Court finds no error in the BIA’s holding.
The Petition is DENIED.
The motion to stay removal (Docket Entry No. 2) is denied.
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