Albert Navarro-Paniagua v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2018
• Docket: 15-72699
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 7 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALBERT ALEXANDER NAVARRO- No. 15-72699 PANIAGUA, Agency No. A089-927-518 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 5, 2018** Portland, Oregon

Before: M. SMITH and MURGUIA, Circuit Judges, and HELLERSTEIN,*** District Judge.

* 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 Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. Albert Alexander Navarro-Paniagua, a native and citizen of El Salvador,

petitions for review of an order of the Board of Immigration Appeals (“BIA”)

dismissing his appeal from an immigration judge’s (“IJ”) decision denying asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

Our jurisdiction is governed by 8 U.S.C. § 1252(a)(1). We review questions

of law de novo and the agency’s factual findings for substantial evidence. Zetino

v. Holder, 622 F.3d 1007, 1011–12 (9th Cir. 2010).

As an initial matter, we decline to review the IJ’s adverse credibility

determination and the IJ’s finding that petitioner’s asylum filing was time-barred.

It is well settled that when “the BIA conducts its own review of the evidence and

law, our review is limited to the BIA’s decision, except to the extent that the IJ’s

opinion is expressly adopted.” Villavicencio v. Sessions, 879 F.3d 941, 945 (9th

Cir. 2018) (internal quotation marks omitted) (quoting Young v. Holder, 697 F.3d

976, 981 (9th Cir. 2012) (en banc)). Because the BIA expressly declined to rely on

the IJ’s adverse credibility and time bar determinations, we confine our review to

the reasons given by the BIA. Abebe v. Gonzales, 432 F.3d 1037, 1040–41 & n.4

(9th Cir. 2005) (explaining that when the BIA “constrict[s] the scope of its opinion

to apply to only one ground upon which the IJ’s decision rested,” our review is

limited to the grounds upon which the BIA relied); see also Parussimova v.

Mukasey, 555 F.3d 734, 738 n.3 (9th Cir. 2009).

2 As to petitioner’s application for asylum and withholding of removal, the

BIA held that petitioner failed to prove that he was a member of a particular social

group entitled to protection under the Immigration and Nationality Act (“INA”).

Petitioner proposed that he was a member of the particular social group of United

States deportees with United States citizen children. This proposed group is not

particularized and distinct within Salvadoran society and therefore cannot

constitute a particular social group. See Henriquez-Rivas v. Holder, 707 F.3d

1081, 1084, 1091–93 (9th Cir. 2013). There is substantial evidence to support the

BIA’s conclusion that petitioner’s proposed group does not qualify as a particular

social group under the INA.

The BIA also held that petitioner failed to establish a nexus between his fear

of future harm resulting from gang activity and his proposed social group.

Petitioner based his claim on a handful of indiscriminate acts of gang violence

against members of his extended family in El Salvador. But as we have previously

explained, “[a]n alien’s desire to be free from harassment by criminals motivated

by theft or random violence by gang members bears no nexus to a protected

ground,” Zetino, 622 F.3d at 1016, and therefore does not alone support an

application for asylum. Petitioner failed to show a nexus between his proposed

social group and gang activity in El Salvador. As such, substantial evidence

supports the BIA’s holding.

3 The BIA also found that petitioner was not entitled to relief under the CAT.

To prevail on such a claim, petitioner must show that it is more likely than not that

he will be tortured if he returns to El Salvador, by or with the acquiescence,

including through willful blindness, of a government official. See Cole v. Holder,

659 F.3d 762, 771 (9th Cir. 2011). Petitioner has not claimed that he has been

tortured in the past, nor has he established that he is likely to be tortured in the

future. Petitioner’s primary evidence in support of his CAT claim, which consists

of two random acts of gang violence and one threat against an extended family

member dating back more than a decade, is insufficient to show that it is more

likely than not he will be tortured in El Salvador. Id. Substantial evidence

therefore supports the BIA’s denial of relief under the CAT.

PETITION DENIED.