Edgar Duran v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 18-71785
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDGAR A. DURAN, AKA Almicar Duran, No. 18-71785

Petitioner, Agency No. A094-450-625

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Edgar A. Duran, 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 asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”), and the BIA’s

* 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). order denying his motion to reopen. 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.

Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We review for an

abuse of discretion the BIA’s denial of a motion to reopen. Najmabadi v. Holder,

597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.

Substantial evidence supports the agency’s determination that Duran failed

to establish that any harm he experienced or fears in El Salvador was or would be

on account of a protected ground. See 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.”). The agency did not err in finding that Duran failed to

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

2 18-71785 (3) socially distinct within the society in question.’” (quoting Matter of M-E-V-G-,

26 I. & N. Dec. 227, 237 (BIA 2014))); see also Santos-Lemus v. Mukasey, 542

F.3d 738, 745-46 (9th Cir. 2008) (holding “young men in El Salvador resisting

gang violence” not defined with particularity), abrogated on other grounds by

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). Thus,

Duran’s asylum and withholding of removal claims fail.

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

Duran failed to show 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).

The BIA did not abuse its discretion in denying Duran’s motion to reopen

where he failed to establish prima facie eligibility for relief. See Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (“The BIA is entitled to deny a

motion to reopen where the applicant fails to demonstrate prima facie eligibility for

the underlying relief.”); see also Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir.

2008).

In light of this disposition, we need not reach Duran’s remaining

contentions. See Simeonov, 371 F.3d at 538 (“As a general rule courts and

3 18-71785 agencies are not required to decide issues unnecessary to the results they reach.”

(citation omitted)).

PETITION FOR REVIEW DENIED.

4 18-71785