Andres Jovel-Romero v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2022
• Docket: 15-73760
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDRES REMBERTO JOVEL-ROMERO; No. 15-73760 TATIANA ELIZABETH JOVEL- HERNANDEZ, Agency Nos. A202-074-430 A202-074-431 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 15, 2022** San Francisco, California

Before: SILER,*** TASHIMA, and M. SMITH, Circuit Judges.

* 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 designation. Petitioners Andres Remberto Jovel-Romero (Andres) and his daughter,

Tatiana Elizabeth Jovel-Hernandez (Tatiana), appeal the Board of Immigration

Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) order denying their

applications for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT).

Andres and Tatiana are citizens of El Salvador. In 2014, three gang members

came to Andres’s family home demanding he give them money. When it became

clear he did not have the money, Andres received a note threatening that he and one

of his daughters, or his wife, would be murdered. So, Andres sent his wife and one

of his daughters to his mother-in-law’s house, and he and Tatiana fled to the United

States. Andres did not report the threat to law enforcement in El Salvador because

he feared an investigation would tip off the gang. When Andres and Tatiana entered

the United States, they were placed in removal proceedings for being present without

having been admitted or paroled. See 8 U.S.C. 1182(a)(6)(A)(i).

Andres and Tatiana filed applications for asylum, withholding of removal, and

relief under the CAT. Andres sought asylum and withholding of removal on account

of the persecution he suffered allegedly for his political opinion and because he was

part of the Salvadorian social group, “young men refusing to participate in gang

activities.” Tatiana based her claims on her father’s claims. The IJ rejected both

Andres’s and Tatiana’s claims. Andres and Tatiana appealed the IJ’s order to the

2 BIA, and the BIA dismissed the appeal. Andres and Tatiana petitioned for review.

For the following reasons, we DENY IN PART and DISMISS IN PART the

petition.

We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252.

We review legal questions de novo and factual findings for substantial evidence.

Conde Quevedo v. Barr, 947 F.3d 1238, 1241–42 (9th Cir. 2020). When the BIA

conducts a de novo review of the IJ’s decision, “our review is limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly adopted.” Zumel v. Lynch,

803 F.3d 463, 471 (9th Cir. 2015) (citation omitted). In reviewing the decision, we

may affirm only on grounds relied upon by the agency. See INS. v. Ventura, 537

U.S. 12, 16–17 (2002).

Before the BIA, Andres and Tatiana made a general challenge to the IJ’s order

but throughout their brief only mentioned Andres’s claims. And Andres never

mentioned his asylum or withholding-of-removal claims based on his political

opinion. We therefore dismiss for lack of jurisdiction Tatiana’s claims and Andres’s

political-opinion-based asylum and withholding-of-removal claims. See Alvarado

v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014) (“Although a petitioner need not

raise his precise argument in administrative proceedings, he cannot satisfy the

exhaustion requirement by making a general challenge to the IJ’s decision, but,

rather, must specify which issues form the basis of the appeal.” (cleaned up)).

3 As for his other asylum claim, we have frequently rejected Andres’s proposed

social group. See, e.g., Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46 (9th Cir.

2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081

(9th Cir. 2013) (“[T]he group . . . young men in El Salvador resisting gang violence

[does not] meet the requirement for particularity. . . . [or] social visibility.”); Ramos-

Lopez v. Holder, 563 F.3d 855, 861 (9th Cir. 2009), abrogated on other grounds by

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (“‘[Y]oung men in El

Salvador resisting gang violence’ do not constitute a social group because [the group

is] ‘too broad and diverse.’”) (citing Santos-Lemus, 542 F.3d at 745–46). Andres

does not identify any evidence in the record that compels a contrary finding.1 Cf.

Rivera-Sorto v. Barr, 813 F. App’x 271, 274 (9th Cir. 2020) (Mem.). He passingly

claims the BIA did not consider the 2013 U.S. State Department report on El

Salvador, but that contention is unsupported by the record. See Andrade v. Lynch,

798 F.3d 1242, 1244 (9th Cir. 2015) (per curiam) (“[F]ailure of the BIA to consider

evidence of country conditions constitutes reversible error where the Country Report

1 1. Andres argues we should not extend Chevron deference to Matter of W–G– R–, 26 I&N Dec. 208, 210 (BIA 2014) and Matter of M–E–V–G–, 26 I&N Dec. 227, 228 (BIA 2014)—both of which the BIA relied upon—because the decisions are unreasonable. Since Andres made his argument in 2016, we have held that “the BIA’s interpretation in W–G–R– and M–E–V–G– of the ambiguous phrase ‘particular social group,’ including the BIA’s articulation of the ‘particularity’ and ‘social distinction’ requirements is reasonable and entitled to Chevron deference.” Reyes v. Lynch, 842 F.3d 1125, 1135 (9th Cir. 2016). We therefore reject this argument.

4 has been submitted as evidence . . . and the BIA does not even mention it.”).

Andres’s asylum and withholding-of-removal claims are therefore denied. See

Ramos-Lopez, 563 F.3d at 858 (“[T]o be eligible for either form of relief, the

persecution feared must be on account of one of the five protected grounds.”).

Finally, to qualify for CAT protection, Andres must “establish that it is more

likely than not that he . . . would be tortured if removed to” El Salvador. 8 C.F.R. §

1208.16(c)(2). Other than a few references to newspaper articles and El Salvador’s

country report, Andres has not identified evidence that compels us to find the

Salvadorian government would acquiesce in his torture; indeed, he testified he was

afraid to report the threat because he believed law enforcement would search for the

gang members. Cf. Iraheta v. Holder, 532 F. App’x 703, 705 (9th Cir. 2013) (Mem.)

(“[T]he BIA permissibly concluded that the Salvadoran government would not

consent to, or acquiesce in, gang violence against Iraheta. For example, Iraheta

himself testified that police officers had come to guard his home after he reported

one incident.”). His claim is therefore denied.

The petition is DENIED IN PART and DISMISSED IN PART.