Rodrigo Alfaro-Lopez v. William Barr

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODRIGO ENRIQUE ALFARO-LOPEZ, No. 19-70480 Petitioner, Agency No. A099-482-480

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 7, 2020** Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

Rodrigo Enrique Alfaro-Lopez, 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 applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), and the BIA’s denial of his motion to remand. Our jurisdiction is governed by 8

*

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).

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. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We review for abuse of discretion the BIA’s denial of a motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We review de novo due process claims in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

The agency did not err in finding that Alfaro-Lopez’s social group based on gang recruitment was not cognizable. 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))); Santos-Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008) (“young men in El Salvador resisting gang violence” does not constitute a particular social group), abrogated in part by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013). We lack jurisdiction to consider Alfaro-Lopez’s social

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group claim based on his family membership. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

In addition, substantial evidence supports the agency’s determination that Alfaro-Lopez failed to establish the harm he fears 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”); Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (rejecting political opinion claim where petitioner did not present sufficient evidence of political or ideological opposition to the gang’s ideals or that the gang imputed a particular political belief to the petitioner).

Thus, Alfaro-Lopez’s asylum and withholding of removal claims fail.

Substantial evidence also supports the agency’s denial of CAT relief because Alfaro-Lopez 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); see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (generalized evidence of violence and crime in petitioner’s home country was insufficient to meet standard for CAT relief).

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The BIA did not abuse its discretion in denying Alfaro-Lopez’s motion to remand to apply for cancellation of removal because he failed to demonstrate prima facie eligibility for relief. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (“The BIA is entitled to deny a motion to reopen where the applicant fails to demonstrate prima facie eligibility for the underlying relief.”); see also Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008) (“The formal requirements for a motion to reopen and a motion to remand are the same.”).

Alfaro-Lopez’s due process claim based on his age at the time he was served with the notice to appear fails because Alfaro-Lopez has not established prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring substantial prejudice to prevail on a due process claim).

In his opening brief, Alfaro-Lopez does not challenge the BIA’s determinations regarding the immigration court’s jurisdiction, humanitarian asylum, and his due process claim based on conditions of detention. 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).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.