Daniel Galdamez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 2021
• Docket: 14-70422
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL VICENTE GALDAMEZ, No. 14-70422

Petitioner, Agency No. A072-540-451

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Daniel Vicente Galdamez, a native and citizen of El Salvador, petitions pro

se for review of the Board of Immigration Appeals’ order dismissing his appeal

from an immigration judge’s decision denying his applications for special rule

cancellation of removal under § 203 of the Nicaraguan Adjustment and Central

* 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). American Relief Act (“NACARA”), voluntary departure, asylum, withholding of

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

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,

including whether a state statutory crime qualifies as an aggravated felony.

Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020). We review for

substantial evidence the agency’s factual findings. Tamang v. Holder, 598 F.3d

1083, 1088 (9th Cir. 2010). We dismiss in part and deny in part the petition for

review.

We lack jurisdiction to review the agency’s determination that Galdamez is

not eligible for NACARA relief because he failed to establish that he is a

registered ABC class member or applied for asylum prior to April 1, 1990. See

Ixcot v. Holder, 646 F.3d 1202, 1213-14 (9th Cir. 2011) (court is precluded from

reviewing the agency’s factual determination that petitioner is ineligible for special

rule cancellation of removal under NACARA).

The agency did not err in concluding that Galdamez failed to establish that

his 1994 conviction under California Health and Safety Code § 11360(a) was not

an aggravated felony that renders him ineligible for voluntary departure.

See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229c(b); 1101(a)(43)(B); Pereida v.

Wilkinson, 141 S. Ct. 754, 766 (2021) (an inconclusive conviction record is

insufficient to meet applicant’s burden of proof to show eligibility for relief).

2 14-70422 Substantial evidence supports the agency’s determination that Galdamez

failed to establish the harm he experienced in El Salvador was on account of a

protected ground. See Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir. 2000)

(harm occurring because of current membership in military is not persecution on

account of a protected ground). In his opening brief, Galdamez does not challenge

the agency’s determination that he failed to establish the harm he fears in El

Salvador would be on account of a protected ground. See Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and

argued in a party’s opening brief are waived). Thus, Galdamez’s claims for

asylum, humanitarian asylum, and withholding of removal fail.

Substantial evidence supports the agency’s denial of CAT relief because

Galdamez failed to show it is more likely than not he would be tortured by or with

the consent or acquiescence of the government if returned to El Salvador. See

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We reject as unsupported by

the record Galdamez’s contention that the agency erred in its analysis of his claim.

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

3 14-70422