Marlon Portillo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 14-71690
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARLON BONIFACIO PORTILLO, No. 14-71690

Petitioner, Agency No. A094-302-359

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.

Marlon Bonifacio Portillo, 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”).

* 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). 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 deny the petition for review.

In his opening brief, Portillo does not challenge the agency’s dispositive

determination that his asylum application was untimely and that he failed to

establish any changed or extraordinary circumstances to excuse the untimeliness.

See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not

specifically raised and argued in a party’s opening brief are waived). Thus, we

deny the petition for review as to Portillo’s asylum claim.

Substantial evidence supports the agency’s determination that Portillo 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.”). Further, the agency did not err in finding that Portillo failed

2 14-71690 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 (3) socially distinct within the society in question.’” (quoting

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). In light of this

disposition, we need not reach Portillo’s contentions as to internal relocation in El

Salvador or whether the government of El Salvador is unwilling or unable to

control his persecutors. See Simeonov, 371 F.3d at 538 (“As a general rule courts

and agencies are not required to decide issues unnecessary to the results they

reach.” (citation omitted)). Thus, Portillo’s withholding of removal claim fails.

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

Portillo failed to show it is more likely than not he will 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).

PETITION FOR REVIEW DENIED.

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