William Arcia-Ruiz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2020
• Docket: 16-70946
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM ERNESTO ARCIA-RUIZ, No. 16-70946

Petitioner, Agency No. A200-196-742

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

Respondent.

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

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

William Ernesto Arcia-Ruiz, a native and citizen of El Salvador, petitions

pro se 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”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

* 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). substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d

1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in part the petition for

review.

The record does not compel the conclusion that Arcia-Ruiz established

changed or extraordinary circumstances to excuse his untimely asylum application.

See 8 C.F.R. § 1208.4(a)(4)-(5). We do not consider Arcia-Ruiz’s contentions as

to changed country conditions in El Salvador because the BIA did not reach that

issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review

limited to the grounds relied on by the BIA), and Arcia-Ruiz does not contend the

BIA erred in finding that claim was not properly before it, see Corro-Barragan v.

Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening

brief resulted in waiver).

Substantial evidence supports the agency’s determination that Arcia-Ruiz

failed to demonstrate that the harm he experienced or fears was or would be on

account of his family membership. See INS v. Elias-Zacarias, 502 U.S. 478, 483

(1992) (an applicant “must provide some evidence of [motive], direct or

circumstantial”); see also Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (a

petitioner who establishes membership in particular social group must also

“establish that any persecution was or will be on account of his membership in

such group”); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an

2 16-70946 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”). Thus,

Arcia-Ruiz’s withholding of removal claim fails.

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

Arcia-Ruiz 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).

We lack jurisdiction to consider Arcia-Ruiz’s contentions as to prosecutorial

discretion. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court

lacks jurisdiction to review claims not presented to the agency); see also Vilchiz-

Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).

As stated in the court’s June 28, 2016 order, the temporary stay of removal

remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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