Alfaro Velasquez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2025
• Docket: 23-1725
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 16 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ALFARO VELASQUEZ, No. 23-1725 Agency No. Petitioner, A095-013-106 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted January 14, 2025** Pasadena, California

Before: RAWLINSON and M. SMITH, Circuit Judges, and RAKOFF, District Judge.***

Jose Alfaro Velasquez (Alfaro Velasquez), a native and citizen of El

Salvador, petitions for review of a decision of the Board of Immigration Appeals

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. (BIA) dismissing his appeal of the denial by an Immigration Judge (IJ) of his

application for asylum and withholding of removal.1 We have jurisdiction

pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition for review.

Because Alfaro Velasquez does not challenge the BIA’s ruling that he failed

to file a timely asylum application or demonstrate extraordinary circumstances for

his untimely filing, he has waived this issue, and the untimely filing of his

application renders him ineligible for asylum. See Nguyen v. Barr, 983 F.3d 1099,

1102 (9th Cir. 2020); see also 8 U.S.C. § 1158(a)(2)(B) (providing that a

noncitizen must “demonstrate[] by clear and convincing evidence that the

application has been filed within 1 year after the date of the [noncitizen’s] arrival

in the United States”).

In any event, substantial evidence supports the BIA’s alternative

determination that Alfaro Velasquez did not demonstrate that any harm that he

suffered due to gang violence in El Salvador was on account of a protected ground

as required for his asylum and withholding of removal claims. See Antonio v.

Garland, 58 F.4th 1067, 1072 (9th Cir. 2023) (explaining that “[w]e review for

1 Alfaro Velasquez has waived any challenge to the denial of his claim under the Convention Against Torture, because he did not sufficiently raise the issue in his opening brief or before the BIA. See Chmukh v. Garland, No. 21-1096, -- F.4th --, 2024 WL 5196020, at *3 n.1 (9th Cir. Dec. 23, 2024). Alfaro Velasquez has similarly waived any challenge to the BIA’s denial of his cancellation of removal claim. See id.

2 23-1725 substantial evidence the agency’s determination that a petitioner has failed to

establish eligibility for asylum or withholding of removal”) (citation, alteration,

footnote reference, and internal quotation marks omitted). “A nexus between the

harm and a protected ground is a necessary element of asylum and withholding of

removal.” Umana-Escobar v. Garland, 69 F.4th 544, 551 (9th Cir. 2023), as

amended (citation omitted). “For asylum, the protected characteristic must be a

central reason for the past or feared harm. . . .” Id. (citation and internal quotation

marks omitted). “For withholding of removal, an applicant must show only that a

protected ground is a reason for future persecution.” Id. (citation and internal

quotation marks omitted).

Alfaro Velasquez contends that he is entitled to asylum and withholding of

removal because, approximately twenty years ago, he was threatened, robbed, and

beaten by a gang that attempted to recruit him. However, his “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 v. Holder, 622 F.3d 1007,

1016 (9th Cir. 2010), as amended (citations omitted); see also Garcia v. Wilkinson,

988 F.3d 1136, 1145 (9th Cir. 2021) (observing that “general opposition to gangs

and gang recruitment are not protected grounds”) (citation omitted). “Accordingly,

the BIA properly ruled that [Alfaro Velasquez] did not meet his burden of proving

that the potential harm he would suffer in El Salvador was on account of a

3 23-1725 protected ground such as race, religion, nationality, membership in a particular

social group, or political opinion.” Zetino, 622 F.3d at 1016 (citation and internal

quotation marks omitted).2,3

PETITION DENIED.

2 Alfaro Velasquez maintains that he intends to file a motion to reopen because his counsel rendered ineffective assistance during his removal proceedings. We lack jurisdiction over this issue that was not previously raised before the BIA. See Benedicto v. Garland, 12 F.4th 1049, 1062 (9th Cir. 2021). 3 The temporary stay of removal continues until the mandate issues.

4 23-1725