Salvador Merino v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 10, 2020
• Docket: 14-73247
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SALVADOR MERINO, No. 14-73247

Petitioner, Agency No. A094-322-099

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

Respondent.

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

Submitted July 6, 2020**

Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.

Salvador Merino, a native and citizen of El Salvador, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reconsider its order dismissing his appeal from an immigration judge’s (“IJ”)

decision denying his application for relief or to reopen proceedings to consider

* 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). additional evidence. We have jurisdiction under 8 U.S.C. § 1252, and we dismiss

in part and deny in part the petition.

To the extent Merino challenges the BIA’s underlying dismissal order, we

lack jurisdiction to review that decision because it was issued on June 19, 2014,

and Merino did not file this petition for review until October 20, 2014. See Singh

v. Lynch, 835 F.3d 880, 882 (9th Cir. 2016) (“A petition for review must be filed

not later than 30 days after the date of the final order of removal. This deadline is

mandatory and jurisdictional.” (citation and quotation marks omitted)); see also

Stone v. INS, 514 U.S. 386, 405 (1995) (“[A] deportation order is final, and

reviewable, when issued. Its finality is not affected by the subsequent filing of a

motion to reconsider.”).

The BIA did not abuse its discretion by denying Merino’s motion to

reconsider. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). Merino

did not identify any errors of fact or law in the BIA’s decision; instead, he reargued

that the IJ should have granted relief or allowed him more time to gather evidence.

See 8 C.F.R. § 1003.2(b)(1); Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004) (“A

petitioner’s motion to reconsider must identify a legal or factual error in the BIA’s

prior decision.”).

The BIA did not abuse its discretion by denying Merion’s motion to reopen.

See Cano-Merida, 311 F.3d at 964. Merino submitted a declaration from his

2 14-73247 children corroborating his testimony about extortion by gang members, but did not

show that the declaration could not have been obtained earlier or that it would have

likely changed the outcome of his case. See 8 C.F.R. § 1003.2(c)(1); Shin v.

Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (applicants “who seek to remand or

reopen proceedings to pursue relief bear a ‘heavy burden’ of proving that, if

proceedings were reopened, the new evidence would likely change the result in the

case” (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992))). The

declaration does not show that Merino is a member of a particular social group;

that the conduct he fears would be on account of that membership; or that he will

more likely than not be tortured by or with the consent or acquiescence of the

government if returned to El Salvador. See Zetino v. Holder, 622 F.3d 1007, 1016

(9th Cir. 2010) ( “An alien’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”).

PETITION DISMISSED in part and DENIED in part.

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