Edgar Alfaro-Garcia v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2019
• Docket: 15-70086
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDGAR WILFREDO ALFARO-GARCIA, No. 15-70086 AKA Edgar Alfaro, AKA Edgar Wilfredo Alfaro, AKA Jorge Contreras, AKA Edgar Agency No. A205-315-788 Wilfredo Garcia,

Petitioner, MEMORANDUM*

v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 11, 2019**

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

Edgar Wilfredo Alfaro-Garcia, a native and citizen of El Salvador, petitions

pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing

his appeal from an immigration judge’s decision denying his application for

* 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). asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo

questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except

to the extent that deference is owed to the BIA’s interpretation of the governing

statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).

We review for substantial evidence the agency’s factual findings. Zehatye v.

Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for

review.

Alfaro-Garcia does not challenge the agency’s dispositive determination that

his asylum application was untimely and that he failed to establish any changed or

extraordinary circumstances to excuse the untimeliness. 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).

The BIA did not err in finding that Alfaro-Garcia did not establish

membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,

1131 (9th Cir. 2016) (in order to demonstrate membership in a particular group,

“[t]he applicant must ‘establish that the group is (1) composed of members who

share a common immutable characteristic, (2) defined with particularity, and (3)

socially distinct within the society in question’” (quoting Matter of M-E-V-G-, 26

I. & N. Dec. 227, 237 (BIA 2014))). Substantial evidence supports the agency’s

2 determination that Alfaro-Garcia otherwise failed to demonstrate a nexus between

the harm he experienced or fears in El Salvador and a protected ground. See Guo

v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018) (an applicant for withholding of

removal must demonstrate that it is more likely than not that he would be subject to

persecution on account of a protected ground); Zetino v. Holder, 622 F.3d 1007,

1016 (9th Cir. 2010) (an 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”). Thus, Alfaro-Garcia’s withholding of removal claim fails.

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

Alfaro-Garcia failed to show that it is more likely than not that 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 do not reach Alfaro-Garcia’s contentions as to whether he was convicted

of a particularly serious crime. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th

Cir. 2010) (the court’s review is limited to the actual grounds relied upon by the

BIA).

To the extent Alfaro-Garcia’s motion, filed at Docket Entry No. 12, seeks to

supplement the record or his arguments in support of this petition for review, it is

denied.

PETITION FOR REVIEW DENIED.