Carlos Henriquez v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2018
• Docket: 15-71514
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS ERNESTO HENRIQUEZ, AKA Nos. 15-71514 Carlos Ernesto Enriquez, 16-71400 17-71187 Petitioner, Agency No. A077-079-920 v.

JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General,

Respondent.

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

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Carlos Ernesto Henriquez, a native and citizen of El Salvador, petitions for

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

from an immigration judge’s decision denying his application for relief under the

* 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). Convention Against Torture (“CAT”) (No. 15-71514), and the BIA’s orders

denying his two motions to reopen removal proceedings (Nos. 16-71400 and 17-

71187). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings, Garcia-Milian v. Holder, 755 F.3d 1026,

1031 (9th Cir. 2014), and for abuse of discretion the denial of a motion to reopen,

Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petitions for

review.

As to petition No. 15-71514, substantial evidence supports the agency’s

denial of Henriquez’s CAT claim because he failed to establish it is more likely

than not that he would be tortured by or with the consent or acquiescence of the

government of El Salvador. See Garcia-Milian, 755 F.3d at 1033-35 (concluding

that petitioner did not establish the necessary “state action” for CAT relief); Zheng

v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too

speculative); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010)

(petitioners’ generalized evidence of violence and crime was not particular to

petitioners and was insufficient to meet the CAT standard).

As to petition No. 16-71400, in his opening brief, Henriquez fails to

challenge the denial of his first motion to reopen. See Corro-Barragan v. Holder,

2 15-71514 718 F.3d 1174, 1177 n. 5 (9th Cir. 2013) (failure to contest issue in opening brief

resulted in waiver).

Finally, as to petition No. 17-71187, the BIA did not abuse its discretion by

denying Henriquez’s second motion to reopen as untimely and number-barred

where he failed to establish circumstances warranting equitable tolling. See 8

C.F.R. § 1003.2(c)(2); Iturribarria, 321 F.3d at 897 (holding that equitable tolling

is available “when a petitioner is prevented from filing [a motion to reopen]

because of deception, fraud, or error, as long as the petitioner acts with due

diligence in discovering the deception, fraud, or error”).

PETITIONS FOR REVIEW DENIED.

3 15-71514