NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CATARINA MONTEJO SANTIAGO; et 

al., 

Petitioners, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-72234 

Agency Nos. A208-306-953 

A208-306-954 

A208-306-955 

A208-306-956 

A208-306-957 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 10, 2021**

Pasadena, California

Before: BYBEE and BRESS, Circuit Judges, and CARDONE,*** District Judge.

Catarina Montejo Santiago (“Montejo”), a citizen of Guatemala, seeks review 

of a Board of Immigration Appeals (BIA) decision dismissing her appeal of an 

* 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 Kathleen Cardone, United States District Judge for the 

Western District of Texas, sitting by designation.

FILED

MAY 13 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Immigration Judge (IJ) order denying her applications for asylum, withholding of 

removal, and relief under the Convention Against Torture (CAT). Montejo’s four 

minor children are also petitioners here. They are derivative applicants on Montejo’s

asylum application and filed applications for withholding of removal based on 

Montejo’s testimony. For the sake of simplicity, we refer to Montejo in resolving 

all petitioners’ claims. We review “denials of asylum, withholding of removal, and

CAT relief for substantial evidence.” Wang v. Sessions, 861 F.3d 1003, 1007 (9th

Cir. 2017) (quotation omitted). We have jurisdiction under 8 U.S.C. § 1252. We 

dismiss the petition in part and deny it in part.

1. Montejo argues for the first time on appeal that the immigration court 

lacked jurisdiction over her proceedings because the Notice to Appear (NTA) did 

not contain a certificate of service indicating the court in which the NTA was filed. 

We lack jurisdiction over this claim because Montejo failed to exhaust this issue 

before the BIA. See Arsdi v. Holder, 659 F.3d 925, 928 (9th Cir. 2011) (holding that 

an alien must have “exhausted all administrative remedies available to the alien as 

of right” for this court to have jurisdiction) (quoting 8 U.S.C. § 1252(d)(1)). 

2. Substantial evidence supports the BIA’s determination that Montejo’s 

asylum and withholding claims failed because she did not establish a nexus between 

her proposed family social group and her claimed harm. Barajas-Romero v. Lynch, 

846 F.3d 351, 359–60 (9th Cir. 2017); Duran-Rodriguez v. Barr, 918 F.3d 1025, 
3 

1028 (9th Cir. 2019). Montejo testified that cartel members demanded money from 

her, her husband, and her parents because the criminals thought they had money, not 

because of her family relationships. The record does not compel the conclusion that 

Montejo has shown past persecution or a likelihood of future persecution “on 

account of” or “because of” her membership in her claimed family social group. See

Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free 

from harassment by criminals motivated by theft . . . bears no nexus to a protected 

ground.”).1 

3. Substantial evidence supports the BIA’s conclusion that Montejo’s 

CAT claim failed because her past harm does not rise to the level of torture and she 

had not shown that it was more likely than not that Guatemalan officials would 

torture Montejo or acquiesce in her torture. See Garcia-Milian v. Holder, 755 F.3d 

1026, 1033–34 (9th Cir. 2014); 8 C.F.R. § 1208.16(c)(2). In addition, “general 

ineffectiveness on the government’s part to investigate and prevent crime will not 

suffice to show acquiescence.” See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 

1 Because her brief argues only that she was harmed because of her family 

membership, Montejo waived the argument she made to the IJ and BIA that she was 

harmed based on her membership in a proposed social group comprising 

“Guatemalan Kanjobal females with children who could not get protection from the 

Guatemalan government who is unable or unwilling to protect them.” See Diego v. 

Sessions, 857 F.3d 1005, 1015 n.4 (9th Cir. 2017) (holding that an issue not 

“specifically and distinctly argued and raised” in an opening brief is waived 

(quotation omitted)).
4 

(9th Cir. 2016).

4. Montejo waived her due process claim that the IJ did not act as a neutral 

factfinder by only mentioning the claim in her statement of issues and not arguing it 

in the body of her opening brief. See Diego, 857 F.3d at 1015 n.4.

PETITION DISMISSED IN PART AND DENIED IN PART.