Jonathan Zavaleta-Ramirez v. Eric Holder, Jr. ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2067
JONATHAN ALEXANDER ZAVALETA-RAMIREZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: July 30, 2014 Decided: August 6, 2014
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Robert Redmond, Jr., MCGUIREWOODS, LLP, Richmond, Virginia, for
Petitioner. Stuart F. Delery, Assistant Attorney General,
Melissa Neiman-Kelting, Senior Litigation Counsel, Allison
Frayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Alexander Zavaleta-Ramirez, a native and
citizen of El Salvador, petitions for review of the Board of
Immigration Appeals’ (“Board”) order dismissing his appeal from
the immigration judge’s order denying his applications for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). For the reasons that
follow, we dismiss the petition for review in part and deny it
in part.
Zavaleta first challenges the Board’s agreement with
the immigration judge’s rejection of his claim that he was
eligible for asylum and withholding of removal because he
suffered past persecution, and feared future persecution, on
account of his membership in a particular social group. On
appeal to the Board, Zavaleta asserted that he established past
persecution based on his particular social group, namely, his
kinship ties to a person murdered by a gang. But, as the Board
explained, this was not the same theory of relief that Zavaleta
pursued before the immigration judge, to wit: that Zavaleta had
been persecuted and feared future persecution on account of his
opposition to gangs and resistance to gang recruitment. * The
*
Of course, our decisions in Zelaya v. Holder, 668 F.3d
159, 165-67 (4th Cir. 2012), and Lizama v. Holder, 629 F.3d 440,
447 (4th Cir. 2011), squarely foreclose the position that
(Continued)
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Board thus declined to consider Zavaleta’s refined social group
as it was propounded on appeal.
Before this court, Zavaleta again reframes his
proposed social group, narrowing the group to members of his
family, which is morally opposed to criminal gangs. Under 8
U.S.C. § 1252(d)(1) (2012), this court may review a final order
of removal only if “the alien has exhausted all administrative
remedies available to the alien as of right[.]” Thus we are
jurisdictionally barred from reviewing any particular claim that
is not properly exhausted. See Massis v. Mukasey, 549 F.3d 631,
638–39 (4th Cir. 2008) (noting that alien “may not raise an
issue on appeal that he did not previously raise before the IJ
and [Board]”). Because Zavaleta did not exhaust all available
administrative remedies for this theory of relief, we conclude
that we lack jurisdiction to review the nexus finding in terms
of this newly framed group. See Kporlor v. Holder, 597 F.3d
222, 226 (4th Cir. 2010) (“It is well established that an alien
must raise each argument to the [Board] before we have
jurisdiction to consider it.” (internal quotation marks
omitted)). Accordingly, we dismiss the petition for review as
relevant to the denial of asylum and withholding of removal.
individuals who oppose gangs comprise a viable social group for
purposes of asylum and withholding of removal.
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Zavaleta next argues that, taken together, his
credible testimony and background evidence on conditions in El
Salvador constitute substantial evidence of his claimed fear of
future torture. We review for substantial evidence the denial
of relief under the CAT. Dankam v. Gonzales, 495 F.3d 113, 124
(4th Cir. 2007).
We have thoroughly reviewed the record in this case,
including the hearing testimony and background evidence, and
conclude that it simply does not compel the conclusion that the
gangs operate with the acquiescence of the Salvadoran government
or that the government turns a blind eye to their criminal
activities. See 8 C.F.R. §§ 1208.16(c)(1), (2), 1208.18(a)(1),
(7) (2014). We thus hold that substantial evidence supports the
finding that Zavaleta was not eligible for relief under the CAT.
For these reasons, we dismiss the petition for review
in part and deny it in part. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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