Ernesto Martinez v. Loretta E. Lynch

667 F. App'x 952

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 3, 2016
• Docket: 14-73751
• Status: Unpublished

Opinion

MEMORANDUM **

Ernesto Martinez, 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 applications for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Zehatye v. Gomales, 453 F.3d 1182, 1184-84 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.

We do not consider the extra-record documents because our review is limited to the record underlying the agency’s decision. See Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

Substantial evidence supports the BIA’s conclusion that Martinez is ineligible for cancellation of removal because he failed to establish the requisite 10 years of continuous physical presence in the United States. See 8 U.S.C. § 1229b(d)(1); Garcia-Ramirez v. Gonzales, 423 F.3d 935, 937 n.3 (9th Cir. 2005) (an applicant’s accrual of continuous physical presence ends when removal proceedings are commenced through the service of a notice to appear).

Substantial evidence supports the BIA’s conclusion that the evidence of Martinez’s past harm and fears related to gang recruitment efforts did not establish a nexus to a protected ground. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (applicant must provide “some evidence” of motive, direct or circumstantial) (emphasis in original); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (the “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, Martinez’s asylum and withholding of removal claims fail. See Zetino, 622 F.3d at 1016.

Substantial evidence also supports the BIA’s denial of CAT relief because Martinez failed to establish that it is more likely than not he would be tortured by or with the consent or acquiescence of a public official if returned to El Salvador. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

Finally, Martinez’s challenge to the agency’s bond proceedings is not properly before the court. See 8 U.S.C. § 1226(e); 8 C.F.R. § 1003.19(d); Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011)

PETITION FOR REVIEW IS DENIED in part; DISMISSED in part.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.