Jose Salazar-Reyes v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 2020
• Docket: 19-71682
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE REFUGIO SALAZAR-REYES, No. 19-71682

Petitioner, Agency No. A200-963-363

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

Respondent.

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

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Jose Refugio Salazar-Reyes, a native and citizen of Mexico, 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 and

withholding of removal. We have jurisdiction under 8 U.S.C. 1252. We review

for substantial evidence the agency’s factual findings. Garcia-Milian v. Holder,

* 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). 755 F.3d 1026, 1031 (9th Cir. 2014). 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

de novo claims of due process violations in immigration proceedings. Jiang v.

Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny the petition for review.

Salazar-Reyes does not challenge the agency’s dispositive determination that

his asylum application is time-barred. See Martinez-Serrano v. INS, 94 F.3d 1256,

1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s

opening brief are waived). Thus, we deny the petition for review as to Salazar-

Reyes’ asylum claim.

Substantial evidence supports the agency’s determination that Salazar-Reyes

failed to establish he suffered harm that rises to the level of persecution. See

Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009) (petitioner’s past

experiences, including two beatings, even considered cumulatively, did not compel

a finding of past persecution); see also Nagoulko v. INS, 333 F.3d 1012, 1016-17

(9th Cir. 2003) (discrimination and harassment did not rise to the level of

persecution).

In addition, the agency did not err in finding that Salazar-Reyes did not

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

2 19-71682 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular

social 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))); see also Ramirez-

Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (concluding that “imputed

wealthy Americans” returning to Mexico does not constitute a particular social

group).

We do not consider Salazar-Reyes’ contentions concerning the cognizability

of his family-based social group or his fear of future persecution on account of his

membership in that group because the BIA did not reach those issues, see

Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited

to the grounds relied on by the BIA), and Salazar-Reyes does not argue that was in

error, see Martinez-Serrano, 94 F.3d at 1259-60.

Thus, Salazar-Reyes’ withholding of removal claim fails.

Salazar-Reyes’ request to remand proceedings for lack of jurisdiction is

foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (omission

of certain information from notice to appear can be cured for jurisdictional

purposes by later hearing notice).

3 19-71682 Finally, Salazar-Reyes’ contention that the agency violated his due process

rights or otherwise erred in its analysis of his case fails. See Padilla-Martinez v.

Holder, 770 F.3d 825, 830 (9th Cir. 2014) (requiring error to prevail on a due

process claim).

As stated in the court’s August 28, 2019 order, the temporary stay of

removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.

4 19-71682