Enrique Martinez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2020
• Docket: 15-72189
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ENRIQUE JUVENCIO MARTINEZ, No. 15-72189

Petitioner, Agency No. A094-762-607

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

Respondent.

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

Submitted November 9, 2020**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Enrique Juvencio Martinez, 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 withholding of

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

* 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). Martinez’s request for oral argument, set forth in the opening brief, is denied. jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th

Cir. 2006). We review de novo questions of law. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition

for review.

Substantial evidence supports the agency’s determination that Martinez

failed to establish membership in a cognizable social group. See Reyes v. Lynch,

842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (applicant must demonstrate “membership

in [a] particular social group” (quoting Matter of W-G-R-, 26 I. & N. Dec. 208, 223

(BIA 2014))). Thus, his withholding of removal claim fails.

The BIA did not err in not addressing a family-based social group claim

because Martinez failed to sufficiently notify the BIA of an issue to decide, see

Segura v. Holder, 605 F.3d 1063, 1066 (9th Cir. 2010) (broad statements in the

notice of appeal and brief were insufficient to put the BIA on notice of petitioner’s

claim), and we lack jurisdiction to consider Martinez’s contentions as to his

family-based claim that were not raised to the agency, see Barron v. Ashcroft, 358

F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not

presented to the agency).

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

Martinez failed to show it is more likely than not he will be tortured if returned to

2 El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). Martinez’s

contention that the agency did not consider evidence is unsupported by the record.

See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not

overcome the presumption that the BIA reviewed the record).

As stated in the court’s November 17, 2015 order, the temporary stay of

removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.