Jose Vigil-Carballo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2020
• Docket: 17-70580
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 15 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE SELVIN VIGIL-CARBALLO, Nos. 17-70580 17-72889 Petitioner, 18-71415

v. Agency No. A200-963-578

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

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

Submitted July 13, 2020**

Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges.

In these consolidated petitions for review, Petitioner Jose Selvin Vigil-

Carballo, a native and citizen of El Salvador, timely challenges an order of the

Board of Immigration Appeals ("BIA") denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture ("CAT"),

* 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). as well as orders denying his motions to reopen and to reconsider. We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petitions.

1. The BIA did not err in denying Petitioner’s application for asylum as

untimely because substantial evidence supports its findings that Petitioner’s delay

in applying for asylum was neither reasonable nor due to extraordinary

circumstances. See Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020)

(stating substantial evidence standard). Moreover, the facts that Petitioner claims

were ignored by the BIA were not presented to the immigration judge, so the BIA

was not obligated to consider them. Hui Ran Mu v. Barr, 936 F.3d 929, 936 n.14

(9th Cir. 2019) (citing 8 C.F.R. § 1003.1(d)(3)(iv)).

2. The BIA did not err in denying withholding of removal because

substantial evidence supports its finding that Petitioner is not a member of his

proposed "witness" group. See Hernandez-Montiel v. INS, 225 F.3d 1084, 1091

(9th Cir. 2000) (recognizing that whether an individual is a member of a proposed

social group is a question of fact), overruled on other grounds by Thomas v.

Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc). Petitioner’s cousin was killed

in 2010, but the record does not show that Petitioner witnessed the killing or has

been, or is likely to be, involved in any investigation or criminal proceeding related

to his cousin’s death.

2 3. The BIA did not err in denying relief under CAT because substantial

evidence supports its finding that the Salvadoran government would not likely

acquiesce in any torture that Petitioner might endure. That the police did not take

Petitioner’s written statement in the past does not compel a finding that the police

would be willfully blind to torture by gangs. Moreover, the record reflects the

Salvadoran government’s increased efforts to combat gang violence, including

efforts to combat police corruption.

4. Reviewing de novo, Olivas-Motta v. Whitaker, 910 F.3d 1271, 1275 (9th

Cir. 2018), cert. denied, 140 S. Ct. 1105 (2020), we hold that the immigration

judge did not violate Petitioner’s Fifth Amendment due process rights by

sequestering him while his witness testified, because Petitioner identified no

prejudice that resulted from the immigration judge’s decision. See Gonzaga-

Ortega v. Holder, 736 F.3d 795, 804 (9th Cir. 2013) (stating that a due process

claimant "must demonstrate error and substantial prejudice").

5. Reviewing for abuse of discretion, Tadevosyan v. Holder, 743 F.3d 1250,

1252 (9th Cir. 2014), we hold that the BIA did not err by denying Petitioner’s

motion to reopen, because Petitioner did not demonstrate eligibility for a U visa.

To merit reopening, Petitioner was required to show that he was prima facie

eligible for a U visa which, in turn, required him to show that he had obtained a

3 "certification" in compliance with 8 U.S.C. § 1184(p)(1); see also 8 C.F.R.

§ 214.14(c)(2)(i) (setting forth the requirements of the certification). Petitioner did

not have that certification when he moved to reopen proceedings, so he did not

establish prima facie eligibility for a U visa.

Petitioner asserts that the BIA erred because Matter of Sanchez Sosa, 25 I. &

N. Dec. 807 (BIA 2012), established an exception to the certification requirement

in cases involving compelling circumstances. But Petitioner misreads that case.

Sanchez Sosa focused on "the factors that an Immigration Judge and the Board

should consider in determining whether an alien has established good cause to

continue a case involving a U nonimmigrant visa petition." 25 I. & N. at 807. The

BIA’s statement that an alien may, in compelling circumstances, establish "good

cause" notwithstanding a lack of certification is tied to eligibility for a continuance.

Id. at 814. The BIA did not hold that compelling circumstances could excuse a

lack of certification for determining eligibility for a U visa.

6. The BIA did not abuse its discretion by denying Petitioner’s motion to

reconsider. A motion to reconsider must state "the errors of law or fact in the

previous order." 8 U.S.C. § 1229a(c)(6)(C). Petitioner did not challenge the BIA’s

factual findings. And, as discussed above, the BIA did not misapply Matter of

4 Sanchez Sosa. Accordingly, Petitioner did not identify legal or factual errors that

supported his motion to reconsider.

PETITIONS DENIED.