Oswaldo Giron-Mungia v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2019
• Docket: 15-73296
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSWALDO ALEXANDER GIRON- No. 15-73296 MUNGIA, AKA Oswaldo Alexander Giron- Munguia, Agency No. A087-990-806

Petitioner, MEMORANDUM* v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 11, 2019**

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

Oswaldo Alexander Giron-Mungia, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ 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”).

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026,

1031 (9th Cir. 2014). We dismiss in part, deny in part, and grant in part the

petition for review, and we remand.

We lack jurisdiction to consider Giron-Mungia’s contentions as to the

proposed social group he raises for the first time in his opening brief. 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 supports the agency’s denial of CAT relief because

Giron-Mungia failed to show it is more likely than not that he would 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); Andrade-Garcia v.

Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (finding that “[a] general ineffectiveness

on the government’s part to investigate and prevent crime will not suffice to show

acquiescence” and that “inability to bring the criminals to justice is not evidence of

acquiescence.”).

As to withholding of removal, the agency did not have the benefit of

Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (holding that the “one

central reason” standard applies to asylum but not withholding of removal). Thus,

we grant the petition for review and remand Giron-Mungia’s withholding of

2 15-73296 removal claim to the agency for further proceedings consistent with this

disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

The government will bear the costs for this petition for review.

PETITION FOR REVIEW DISMISSED in part; DENIED in part;

GRANTED in part; REMANDED.

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