NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARIA DE LA PAZ RIVAS

- SARAVIA; et al., Petitioners,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 20

- 72710 Agency Nos. A208

- 371

- 971

A208

- 371

- 972 A208

- 371

- 973

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 13, 2022 * * San Francisco, California Before: SILER, ** * W. FLETCHER, and M. SMITH, Circuit Judges. Maria De La Paz Rivas

- Saravia is a native of El Salvador. S he and her two minor children journeyed to the United States in 2015, a nd the Department of

* 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 Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by des ignation. 

# FILED

APR 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Homeland Security soon initiated removal proceedings again st them. After conceding removability, Rivas

- Saravia applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”)

. 1 When an immigration judge (“IJ”) rejected those applications, Rivas

- Saravia appealed to the Board of Immigration of Appeals (“BIA”). T he BIA adopted and affirmed the IJ’s decision , added some reasoning of its own, and then dismissed the appeal. Rivas

Saravia now petitions this court for review. 8 U. S.C. § 1252. W e review the decisions below for substantial evidence, see Singh v. Holder , 753 F.3d 826, 830 (9th Cir. 2014) ; Flores

- Lopez v. Holder , 685 F.3d 857, 861 (9th Cir. 2012) , and we

now deny the petition.
1. The IJ and the BIA found Rivas

- Sarav ia and her minor children ineligible for asylum because they failed to demonstrate a well

- founded fear of persecution should they return to El Salvador. See 8 U.S.C. § 1101 (a) (42) (to be eligible for asylum, an applicant must be unable or unwilling to return to his or her home country “ because of persecution or a well

- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ”). Substantial evidence supports this fin ding. E ven though Rivas

- Saravia suffered

1 Rivas

- Saravia’s minor children are derivate beneficiaries of her asylum application

. Although the children submitted their own applications for asylum and withholding of removal , those applications relied exclusively on the facts and arguments raised in Rivas

- Saravia’s application and declaration.3

persecution in the mid

- 1990s at the hands of her former partner

— and even though past persecution creates a presumption “that a well

- founded fear of future persecution exists,” Navas v. INS , 217 F.3d 646, 657 (9th C ir. 2000) (citing 8 C.F.R. § 208.13(b)(1)(i) )

—

the government rebutted this presumption with two pieces of evidence. First , Rivas

- Saravia voluntarily returned to El Salvador from 20 11 until
201 5 , a nd , as we’ve previously explained, “ an alien’s history of willingly returning to his or her home country militates against a finding of

. . . a well

- founded fear of future persecution .” Loho v. Mukasey , 531 F.3d 1016, 1017

– 18 (9th Cir. 2008)

. And second, there is no evidence that Rivas

- Sar avia’s former partner has threatened or otherwise persecuted her since 2005, including when she was living in El Salvador

. T aken together these considerations provide substantial evidence from which the BIA and IJ could find a fundamental change in circum stances. See Navas , 217 F.3d
at 657. To the extent Rivas

- Saravia claims the IJ and BIA failed to consider the threat of persecution posed by her daughter’s ex

- husband, Mario Galindo, we lack jurisdiction to consider that argument. Rivas

- Saravia never presented this argument to the BIA, and failure to raise an issue before the BIA “constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.” Vargas v. U.S. Dep ’t of Immigr. & Naturalization , 831 F.2d 906, 907

– 08 (9th Cir. 1987).4

2. For the same reasons, substantial evidence supports the denial of Rivas

Saravia’s application for withholding of removal. See Davila v. Barr , 968 F.3d 1136, 1142 (9th Cir. 2020) ( “An applicant who fails to satisfy the lower standard for asylum necessarily fails to satisfy the more demanding standing for withholding of removal, which involves showing by a ‘clear probability’ that the petitioner’s life or freedom would be threatened in the proposed country of removal.” (citation omitted))

. 3. The IJ and the BIA also found Rivas

- Saravia ineligible for protection under the CAT

. S ubstantial evidence also supports this determination. Rivas

- Saravia failed to show it is “more likely than not” she will suffer torture if she returns to El Salvador. 8 C.F.R. § 208.16(c)(2)

. E ven if she had, she failed to demonstrate a Salvadorian public official would acquiesce in the torture. See Xoch ihua

- Jaimes v.
Barr , 962 F.3d 1175, 1183 (9th Cir. 2020) (“To be eligible for relief under CAT, an applicant bears the burden of establishing that she will more likely than not be tortured with the consent or acquiescence of a public official if removed to her native country.”).
PETITION DENIED .