holding that equitable relief from the exhaustion requirement is available if the “timing is excusable” and the petitioners will face prejudice (quoting Ortiz- Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019))
How later courts described this case
- holding that equitable relief from the exhaustion requirement is available if the “timing is excusable” and the petitioners will face prejudice (quoting Ortiz- Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019))
Written by the judges who cited it.
The opinion
NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0107n.06
No. 25-3637
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Mar 05, 2026
KELLY L. STEPHENS, Clerk
)
DIEGO ORTIZ-LEON and K.O.A., a minor
)
child,
) ON PETITION FOR REVIEW OF
Petitioners, ) AN ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
v. )
)
PAMELA BONDI, Attorney General, OPINION
)
Respondent. )
)
Before: BOGGS, BATCHELDER, and MOORE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioners Diego Ortiz-Leon and his minor
son, K.O.A., seek review of a final order of the Board of Immigration Appeals (“BIA”) affirming
the Immigration Judge’s (“IJ”) decision denying Ortiz-Leon’s application for asylum, withholding
of removal, and humanitarian asylum. Petitioners argue that the BIA committed several errors,
the most important of which here is that the BIA erred in finding that there was no nexus between
their protected characteristics and their claimed persecution in Guatemala. Petitioners have also
sought a stay of removal pending appeal. For the reasons that follow, we DENY the petition for
review and, given that conclusion, DISMISS the motion for a stay of removal as moot.
I. BACKGROUND
Ortiz-Leon and his son are citizens of Guatemala. Administrative Record (“A.R.”) at 196–
97 (I-589 Application for Asylum and Withholding of Removal at 1–2). They are indigenous
No. 25-3637, Ortiz-Leon et al. v. Bondi
Quiche Mayans, id. at 136 (Proposed Stipulated Facts at 1), and Ortiz-Leon primarily speaks
Quiche, although he also speaks “some Spanish,” id. at 87–88 (Hr’g Tr. at 2–3). The other
residents of Petitioners’ hometown in Guatemala also speak Quiche. Id. at 115 (Hr’g Tr. at 28).
Petitioners entered the United States on December 13, 2017, and were not admitted or paroled by
an immigration officer. Id. at 225–26, 261–62 (Notices to Appear). The other members of their
family remained in their hometown in Guatemala. Id. at 121 (Hr’g Tr. at 34). On December 15,
2017, the Department of Homeland Security initiated removal proceedings against Petitioners by
serving them with notices to appear, but the notices did not include the date and time of their
hearings. Id. at 225–26, 261–62 (Notices to Appear).
Petitioners applied for asylum and withholding of removal based on their race and
membership in a particular social group, and for relief under the Convention Against Torture. Id.
at 200 (I-589 Application for Asylum and Withholding of Removal at 5). K.O.A. originally
submitted a separate application for asylum and withholding of removal. Id. at 240–50 (I-589
Application for Asylum and Withholding of Removal at 1–10). Ortiz-Leon’s application,
however, listed K.O.A. as a child to be “included in [his] application.” Id. at 197 (I-589
Application for Asylum and Withholding of Removal at 2). Perhaps because K.O.A. is a minor
and was included in his father’s application, Petitioners did not request that the IJ or BIA consider
K.O.A.’s application separately from his derivative claim based on his father’s application. Id. at
18–29 (Pet’r BIA Br. at 1–9); id. at 90, 96, 101–02, 129–31 (Hr’g Tr. at 5, 11, 14–15, 42–44).
Therefore, the IJ and the BIA evaluated K.O.A.’s claim to relief as derivative of Ortiz-Leon’s
application.
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No. 25-3637, Ortiz-Leon et al. v. Bondi
Petitioners appeared before the IJ, represented by counsel, and admitted that they were
removable. Id. at 89 (Hr’g Tr. at 4). The only documents before the IJ at the hearing were the
notice to appear, Ortiz-Leon’s application for asylum and withholding of removal, his witness list
and evidentiary submissions, and his proposed stipulated facts. Id. at 101–02 (Hr’g Tr. at 14–15).
Petitioners’ attorney did not request that the IJ consider any additional documents when the IJ
presented him with the opportunity to do so. Id. Ortiz-Leon was the only witness who testified
before the IJ. Id. at 106 (Hr’g Tr. at 19).
According to his testimony, Ortiz-Leon was threatened by gang members who left a note
at his house that said that he needed to join the gang or they would kill him. Id. at 107 (Hr’g Tr.
at 20). Ortiz-Leon “d[oes not] know why [he] was targeted by them, but [he] kn[e]w for sure that
the, the end goal of them is to, to, to make their group bigger, more powerful.” Id. at 110 (Hr’g
Tr. at 23). Ortiz-Leon also testified that K.O.A. had been pushed by children at his school and that
he hit his head on rocks and lost consciousness. Id. at 112–13 (Hr’g Tr. at 25–26). Ortiz-Leon
“d[oes not] know why” K.O.A. was targeted by these children. Id. at 113 (Hr’g Tr. at 26). He did
not contact the authorities regarding either of these incidents. Id. at 108, 114 (Hr’g Tr. at 21, 27).
After Ortiz-Leon and K.O.A. came to the United States, his daughter was attacked by a
boy in their hometown, some of his family’s property was stolen, and electric wires to their home
were cut. Id. at 122 (Hr’g Tr. at 35). After their daughter was attacked, Ortiz-Leon’s wife
confronted the attacker’s family, and Ortiz-Leon believes that confrontation is why the family’s
property was damaged or stolen. Id. Ortiz-Leon does not know why his daughter was attacked.
Id. at 124 (Hr’g Tr. at 37). Ortiz-Leon is afraid that he will be killed if he returns to Guatemala
because he refuses to join a gang. Id. at 116–17 (Hr’g Tr. at 29–30).
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No. 25-3637, Ortiz-Leon et al. v. Bondi
The IJ issued a decision on August 27, 2020, and determined that Ortiz-Leon was a credible
witness. Id. at 73, 77 (IJ Op. at 1, 5). The IJ found that Ortiz-Leon’s asylum application was
untimely, but also analyzed his application on the merits. Id. On the merits, the IJ concluded that
Ortiz-Leon had not faced persecution in Guatemala on account of his race or particular social
group. To support this conclusion, the IJ cited Ortiz-Leon’s testimony that he was targeted because
the gang was trying to increase its membership, that he was never physically harmed, and that he
never informed the police about the threats he faced. Id. at 78–79 (IJ Op. at 6–7). The IJ also
found that Ortiz-Leon’s fear of future persecution was not substantiated because Ortiz-Leon did
not know if the gang was still in his town, other members of his family live in the same town and
have not had issues with the gang, and there was no evidence of a pattern or practice of persecution
in the town. Id. at 79 (IJ Op. at 7). The IJ next concluded that the two particular social groups that
Petitioners proposed, “Quiche Mayans living in rural areas and Quiche Mayans who refuse to
participate in criminal gangs,” were “too diffuse . . . to qualify as a particular social group for
purposes of asylum.” Id. at 79–80 (IJ Op. at 7–8). The IJ also noted that there was no evidence
that Ortiz-Leon was targeted because of his race. Id. at 80 (IJ Op. at 8). Finally, the IJ determined
that there was no evidence that Ortiz-Leon would be tortured if he was returned to Guatemala, so
he could not obtain relief under the Convention Against Torture. Id. at 80–91 (IJ Op. at 8–9).
Petitioners’ counsel did not request voluntary departure before the IJ. Id. at 130–31 (Hr’g Tr. at
43–44).
Petitioners appealed to the BIA, and their brief was filed on February 14, 2022. Id. at 18
(Pet’r BIA Br.). Petitioners argued that their asylum application was not untimely, that they
suffered persecution, that they were targeted based on their protected characteristics, and that the
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No. 25-3637, Ortiz-Leon et al. v. Bondi
Guatemalan government was unwilling or unable to control the gangs that targeted them. Id. at
23–27 (Pet’r BIA Br. at 4–8). Petitioners also contended that their fear of future persecution was
well founded and that the IJ should have granted them humanitarian asylum. Id. at 27–28 (Pet’r
BIA Br. at 8–9). Their brief raised no other arguments and did not address their claim for relief
under the Convention Against Torture, their allegedly defective notices to appear, or their claimed
desire for voluntary departure.
The BIA affirmed the IJ’s decision. Id. at 3 (BIA Op. at 1). The BIA agreed with the IJ’s
finding that the gang was not motivated by Ortiz-Leon’s membership in the proposed particular
social groups, which both revolved around his Quiche Mayan identity. The BIA also concluded
that there was no nexus between Ortiz-Leon’s protected characteristic and the persecution he
experienced, because his protected characteristic “was not even ‘a reason’ he was or would be
targeted.” Id. at 4–5 (BIA Op. at 2–3). The BIA determined that Petitioners were not entitled to
humanitarian asylum because they had not “established past persecution on account of a protected
ground.” Id. at 5 (BIA Op. at 3). The BIA did not address any of the other issues raised in
Petitioners’ brief because “the motive and nexus findings [were] dispositive of the applications.”
Id.
In addition to the BIA’s conclusions on the merits, the BIA found that Petitioners had
waived several issues by not raising them in their brief. First, the BIA determined that Petitioners’
argument that they were targeted based on their race was waived because they failed meaningfully
to develop the argument in their brief. Id. at 4 (BIA Op. at 2 n.3). Second, the BIA concluded that
Petitioners waived a challenge to the IJ’s ruling on the Convention Against Torture because they
did not discuss it in their brief. Id. at 3 (BIA Op. at 1 n.1). Finally, the BIA noted that “[t]he son
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No. 25-3637, Ortiz-Leon et al. v. Bondi
is a derivative on the father’s asylum application” and that Petitioners “did not ask the [IJ] to
consider the son’s application separately and the son did not testify” nor raise the issue on appeal,
so they waived the issue. Id. at 3 (BIA Op. at 1 n.2).
Petitioners then sought review of the BIA’s decision in this court. D. 1-2 (Pet. for Review).
Petitioners also filed a motion for a stay of removal pending appeal, D. 9 (Mot. for Stay of
Removal), which is also currently before us.
II. ANALYSIS
Pursuant to 8 U.S.C. § 1252, we have jurisdiction to review the BIA’s final order of
removal. Mazariegos-Rodas v. Garland, 122 F.4th 655, 663 (6th Cir. 2024). Because the BIA
issued an opinion “rather than summarily affirming the immigration judge’s decision, we review
the BIA’s decision as the final agency determination.” Id. (quoting Khalili v. Holder, 557 F.3d
429, 435 (6th Cir. 2009)). The BIA based its decision on the lack of a nexus between the
persecution that Petitioners faced and their protected characteristics, so our analysis focuses on
that conclusion. Id. at 666, 677. We review the BIA’s nexus determinations for substantial
evidence. Id. at 664. Under that standard, we will affirm the BIA’s decision “as long as it is
supported by reasonable, substantial, and probative evidence on the record considered as a whole.”
Id. (quoting Juan Antonio v. Barr, 959 F.3d 778, 788 (6th Cir. 2020)).
A noncitizen may be granted asylum if they qualify as a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). “‘[T]o qualify as a refugee,’ the applicant must establish ‘that he or she has
suffered past persecution on the basis of race, religion, nationality, social group, or political
opinion; or . . . show[ ] that he or she has a well-founded fear of persecution on one of those same
bases.’” Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir. 2012) (quoting Kouljinski v.
6
No. 25-3637, Ortiz-Leon et al. v. Bondi
Keisler, 505 F.3d 534, 541 (6th Cir. 2007)); see 8 U.S.C. § 1101(a)(42)(A). “An applicant who
establishes past persecution is presumed to have a well-founded fear of future persecution.”
Abdurakhmanov, 735 F.3d at 345 (quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004)).
“Otherwise, to establish a well-founded fear of future persecution, the applicant must demonstrate
‘(1) that [they] ha[ve] a fear of persecution in [their] home country on account of race, religion,
nationality, membership in a particular social group, or political opinion; (2) that there is a
reasonable possibility of suffering such persecution if [they] were to return to that country; and (3)
that [they are] unable or unwilling to return to that country because of such fear.’” Id. (quoting
Pilica, 388 F.3d at 950). In order to obtain asylum, Petitioners’ protected status must have been
“at least one central reason” for their persecution. Mazariegos-Rodas, 122 F.4th at 666–67. Their
protected status does not need to be the only reason for the persecution—“applicants ‘need only
show that their persecutor was motivated to harm them, at least in part, on account of an
enumerated ground.’” Id. (citation modified) (quoting Bi Xia Qu v. Holden, 618 F.3d 602, 608
(6th Cir. 2010)). That is referred to as the “nexus” requirement.
To be eligible for withholding of removal, Petitioners must satisfy the same framework,
Abdurakhmanov, 735 F.3d at 345, with one important difference. To demonstrate nexus,
Petitioners must show that their protected status was “a reason” for their persecution—a lower
standard than asylum. Mazariegos-Rodas, 122 F.4th at 677 (quoting Sebastian-Sebastian v.
Garland, 87 F.4th 838, 851 (6th Cir. 2023)); see also Guzman-Vazquez v. Barr, 959 F.3d 253, 272
(6th Cir. 2020).
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No. 25-3637, Ortiz-Leon et al. v. Bondi
The BIA’s determination that Petitioners’ protected status was not a reason for their past
or future persecution is supported by substantial evidence.1 Ortiz-Leon testified that “[he] d[oes
not] know why [he] was targeted by them, but [he] kn[e]w for sure that the, the end goal of them
is to, to, to make their group bigger, more powerful.” A.R. at 110 (Hr’g Tr. at 23). There is no
evidence in the record that Ortiz-Leon’s Quiche Mayan identity was a reason that the gang
threatened him or would continue to do so in the future.2 And the same is true of the children who
targeted his son. Id. at 113 (Hr’g Tr. at 26). That the gang targeted Ortiz-Leon to increase its size
alone is insufficient to establish the required nexus between his persecution and protected
characteristics. Ajqui Gomez, 828 F. App’x at 276–77.
Petitioners’ brief summarily asserts that they were persecuted because of their Quiche
Mayan identity. Pet’r Br. at 17–19. But they point to no evidence that gang members generally
target Quiche Mayans or any other evidence that ties their persecution to their Quiche Mayan
identity. Elsewhere in their brief, Petitioners cite evidence that indigenous communities in
Guatemala are underrepresented in politics and face discrimination and higher rates of poverty.
1
Petitioners argue that the BIA erred by failing to analyze the nexus requirements for asylum and withholding
of removal separately. Pet’r Br. at 13. True, as discussed above, the nexus requirements are different. But the BIA
clearly stated that “the respondent’s membership in his proposed particular social groups was not even ‘a reason’ he
was or would be targeted.” A.R. at 5 (BIA Opinion at 3). The BIA also cited Guzman-Vazquez v. Barr, 959 F.3d 253,
274 (6th Cir. 2020), for the proposition that “the nexus standard for withholding of removal is ‘a reason.’” Id. The
BIA clearly applied the lower withholding-of-removal nexus standard and determined that it was not met. If
Petitioners could not satisfy the lower standard, it necessarily follows that they also could not satisfy the higher asylum
standard. Therefore, the BIA did not commit reversible error by failing to analyze separately the two nexus
requirements. See Ajqui Gomez v. Barr, 828 F. App’x 272, 277 (6th Cir. 2020).
2
Petitioners assert that their protected status is based on their Quiche Mayan race and their membership in
the two proposed particular social groups, “Quiche Mayans living in rural areas” and “Quiche Mayans who refuse to
participate in criminal gangs.” Pet’r Br. at 15, 17–19. The BIA deemed Petitioners’ arguments as to race forfeited,
and therefore analyzed only whether their membership in the proposed particular social groups was the basis for the
persecution. A.R. at 4 (BIA Op. at 2 n.3). Because the only racial identity that Petitioners put forward is being Quiche
Mayan, their race is also encompassed in their proposed particular social groups. Therefore, we need not consider
whether the BIA erred in finding that their arguments as to race were forfeited.
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No. 25-3637, Ortiz-Leon et al. v. Bondi
Pet’r Br. at 15–16. But such general information about the lack of representation and the
discrimination indigenous communities face, which is not specific to Quiche Mayans, is
insufficient to show that Petitioners were persecuted because of their identity or were likely to be
so persecuted in the future. Cf. Bedalli v. Holder, 336 F. App’x 524, 529 (6th Cir. 2009); Bimbona
v. Mukasey, 314 F. App’x 834, 838–39 (6th Cir. 2009). In the end, there is simply nothing in the
record that suggests Petitioners’ Quiche Mayan identity was a reason for their persecution or would
be in the future.3
Petitioners next argue that the BIA erred in holding that they must have faced prior
persecution in order to be eligible for humanitarian asylum. Pet’r Br. at 22. “A petitioner is
eligible for humanitarian asylum, even in the absence of a well-founded fear of future persecution,
if” they “demonstrate[] compelling reasons for being unwilling or unable to return to the country
arising out of the severity of the past persecution” or “establish[] that there is a reasonable
possibility that [they] may suffer other serious harm upon removal to that country.” Gomez-
Romero v. Holder, 475 F. App’x 621, 626–27 (6th Cir. 2012) (quoting 8 C.F.R.
§ 1208.13(b)(1)(iii)). But we have held that if a petitioner “did not suffer past persecution, [they]
cannot receive humanitarian asylum.” K.H. v. Barr, 920 F.3d 470, 479 (6th Cir. 2019); see Gomez-
Romero, 475 F. App’x at 626–27 (holding that humanitarian asylum “is contingent upon a showing
of past persecution” (quoting Duhanaj v. Gonzales, 250 F. App’x 681, 689 (6th Cir. 2007))).
3
Petitioners raise various other arguments about their withholding of removal and asylum claims that the BIA
did not address, such as whether the harm meets the legal definition of persecution and whether the proposed particular
social groups are cognizable. Pet’r Br. at 14–17, 19–21. But the BIA did not reach those questions because the nexus
and motive determinations were dispositive. A.R. at 5 (BIA Op. at 3). Therefore, we too do not address those
arguments. Guzman-Vazquez, 959 F.3d at 374–75; Slyusar v. Holder, 740 F.3d 1068, 1073 (6th Cir. 2014).
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No. 25-3637, Ortiz-Leon et al. v. Bondi
Petitioners raise several arguments for the first time before us. First, Petitioners contend
that the BIA erred in finding that their arguments as to the Convention Against Torture and
K.O.A.’s separate application were forfeited. Pet’r Br. at 23–26. But Petitioners’ brief before the
BIA did not mention either of these issues. A.R. at 18–29 (Pet’r BIA Br. at 1–9).4 Failing to raise
issues on appeal before the BIA forfeits them. Mendez-Rodriguez v. Garland, No. 21-4181, 2022
WL 16640660, at *3 (6th Cir. Nov. 2, 2022); Matter of N-N-B, 29 I. & N. Dec. 79, 79 n.3 (BIA
2025). Therefore, the BIA did not err in determining that they forfeited these arguments. And,
contrary to the assertion in Petitioners’ Brief, Pet’r Br. at 26, the BIA did not determine that K.O.A.
had forfeited his claim to relief. K.O.A. could still have received relief based on his father’s
application because he was included in it. That is why, as Petitioners themselves state,
“[t]hrough[out] the immigration court proceedings, the relief application was treated as one and
the same for both father and son.” Id. at 25.
Petitioners ask us to overlook their forfeiture of the Convention Against Torture claim
because it presents “clear questions of law” and because “a miscarriage of justice” would result if
the claim is not fully examined. Id. at 23. But Petitioners must exhaust issues before the BIA in
order for us to address them. 8 U.S.C. § 1252(d)(1) (providing that courts “may review a final
order of removal only if . . . the [noncitizen] has exhausted all administrative remedies available
to the [noncitizen] as of right”). The exhaustion requirement is not jurisdictional, but it is a claims-
processing rule that we must generally enforce when the Government raises it, as the Government
has here. See Resp’t Br. at 18–20; Mazariegos-Rodas, 122 F.4th at 664. This court, however, has
4
Petitioners also did not argue that K.O.A.’s application should have been considered separately before the
IJ. Id. at 90, 96, 101–02, 129–31 (Hr’g Tr. at 5, 11, 14–15, 42–44).
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No. 25-3637, Ortiz-Leon et al. v. Bondi
not definitively resolved whether the exhaustion requirement may ever be subject to equitable
exceptions.5
Even if we assume that the exhaustion requirement is subject to equitable exceptions,
Petitioners have not persuaded us that they are entitled to one. Petitioners provide no explanation
for their failure to challenge the IJ’s ruling on the Convention Against Torture before the BIA, and
they do not elaborate on what “miscarriage of justice” would result from not reaching the
argument. Courts recognizing an equitable exception to the exhaustion requirement have said that
petitioners must explain why they did not raise the argument before the agency and the prejudice
that would be caused by the court failing to address the argument. See De La Rosa v. Garland, 2
F.4th 685, 687 (7th Cir. 2021) (holding that equitable relief from the exhaustion requirement is
available if the “timing is excusable” and the petitioners will face prejudice (quoting Ortiz-
Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019))). In the absence of any explanation as to why
they did not raise their Convention Against Torture argument before the BIA, there is no basis for
us to grant an equitable exception to the exhaustion requirement here, if such an exception exists.
Next, Petitioners argue that their notices to appear were defective because they did not list
the time and place of their hearing. Pet’r Br. at 11–13. But, yet again, Petitioners did not raise
this argument before the agency. Therefore, they have not satisfied the exhaustion requirement,
which the Government has raised. Mazariegos-Rodas, 122 F.4th at 664; Resp’t Br. at 20.
Petitioners have not shown that their failure to timely raise the argument is excusable. Petitioners
5
We have, at times, described the exhaustion requirement as a mandatory-claims-processing rule that must
be enforced if the Government invokes it. See, e.g., Palma-Zelaya v. Bondi, No. 23-3837, 2025 WL 502964, at *2
(6th Cir. Feb. 14, 2025). But no case has directly addressed whether there can be equitable exceptions to the exhaustion
requirement, and neither this court, nor the Supreme Court, has decided whether mandatory-claims-processing rules
can ever be subject to equitable exceptions. See, e.g., Perez-Aguilar v. Garland, No. 21-3757, 2022 WL 796109, at
*3 n.2 (6th Cir. Mar. 16, 2022).
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point out that, after their hearing before the IJ on August 27, 2020, the Supreme Court decided
Niz-Chavez v. Garland, 593 U.S. 155 (2021), which held that notices to appear that lack the date
and time of the hearing do not trigger the stop-time rule for purposes of calculating how long a
noncitizen had been present in the United States. But Petitioners’ brief before the BIA was filed
on February 14, 2022. A.R. at 18 (Pet’r BIA Br.). Therefore, even if it may have been excusable
for Petitioners to fail to raise this argument before the IJ, there is no reason that they could not
have raised it before the BIA.
Finally, Petitioners argue that the BIA’s failure to consider their “request for voluntary
departure” was erroneous. Pet’r Br. at 26. But Petitioners never requested voluntary departure
before the IJ or the BIA, A.R. at 18–29 (Pet’r BIA Br. at 1–9); id. at 90, 96, 101–02, 129–31 (Hr’g
Tr. at 5, 11, 14–15, 42–44), so this claim was not properly exhausted, Resp’t Br. at 21; Mazariegos-
Rodas, 122 F.4th at 664. Petitioners do not explain why they did not raise voluntary departure
before the agency. Therefore, their failure to exhaust this claim is not excusable, and we must
enforce the exhaustion requirement.
III. CONCLUSION
For the foregoing reasons, we DENY the petition for review and, given that conclusion,
DISMISS the motion for a stay of removal as moot.
12