Amilcar Cifuentes, Jr. v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2018
• Docket: 14-73517
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AMILCAR NOE CIFUENTES, Jr., Nos. 13-74201 14-73517 Petitioner, Agency No. A070-184-948 v.

JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General,

Respondent.

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

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Amilcar Noe Cifuentes, a native citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from

an immigration judge’s (“IJ”) decision denying his application for asylum,

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

* 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). denying his motion to remand (petition No. 13-74201), and the BIA’s order

denying his motion to reopen (petition No. 14-73517). Our jurisdiction is

governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s

factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).

We review de novo ineffective assistance of counsel claims and we review for

abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petitions

for review.

As to petition No. 13-74201, substantial evidence supports the BIA’s finding

that Cifuentes failed to establish past persecution or a well-founded fear of future

persecution on account of a protected ground. See Zetino v. Holder, 622 F.3d

1007, 1016 (9th Cir. 2010) (applicant’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”). We lack jurisdiction to consider Cifuentes’ contention

that he established membership in a particular social group because he failed to

raise it to the BIA in his direct appeal. See Barron v. Ashcroft, 358 F.3d 674, 677-

78 (9th Cir. 2004). Thus, Cifuentes’ asylum and withholding of removal claims

fail.

We also lack jurisdiction to consider Cifuentes’ contention that he is entitled

to CAT relief because he failed to raise any arguments as to the IJ’s denial of CAT

2 13-74201 / 14-73517 relief in his direct appeal. See id.

Finally, the BIA did not err in rejecting Cifuentes’ ineffective assistance of

counsel claim where he failed to demonstrate prejudice. See Rojas-Garcia v.

Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (no prejudice from ineffective

assistance of counsel when petitioner presents no “plausible grounds for relief”).

In light of this disposition, we do not reach Cifuentes remaining ineffective

assistance of counsel contentions.

As to petition No. 14-73517, the BIA did not abuse its discretion by denying

Cifuentes’ untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); see also

Cano-Merida v. INS, 311 F.3d 960, 965-66 (9th Cir. 2002) (no abuse of discretion

in denying motion to reopen where petitioner did not establish prima facie

eligibility for relief).

No. 13-74201: PETITION FOR REVIEW DENIED in part,

DISMISSED in part.

No. 14-73517: PETITION FOR REVIEW DENIED.

3 13-74201 / 14-73517