Osbel Gomez Valle v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSBEL GOMEZ VALLE, Nos. 11-73274
12-71440
Petitioner,
Agency No. A094-833-657
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Osbel Gomez Valle, a native and citizen of El Salvador, petitions for review
of the Board of Immigrations Appeals’ (“BIA”) orders (1) dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”);
and (2) denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C.
*
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).
§ 1252. We review questions of law de novo, except to the extent that deference is
owed to the BIA’s interpretation of the governing statutes and regulations. Pirir-
Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). We review claims of due
process violations in immigration proceedings de novo. Jiang v. Holder, 754 F.3d
733, 738 (9th Cir. 2014). We review the agency’s factual findings for substantial
evidence. Zehatye v. Gonzales, 435 F.3d 1182, 1184-85 (9th Cir. 2006). We
review the denial of a motion to reopen for an abuse of discretion. Salim v. Lynch,
831 F.3d 1133, 1137 (9th Cir. 2016). We dismiss in part and deny in part petition
No. 11-73274, and we deny petition No. 12-71440.
We lack jurisdiction to review Gomez Valle’s contention as to his political
opinion that he raises for the first time in his opening brief. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (court lacks jurisdiction to review
claims not presented to agency).
Substantial evidence supports the agency’s determination that Gomez Valle
failed to show that he was eligible for asylum or withholding of removal because
he did not establish that young men who have been recruited by gangs in El
Salvador but refuse to join constitute a particular social group. See Reyes v. Lynch,
842 F.3d 1125, 1131, 1137-38 (9th Cir. 2016) (to demonstrate membership in a
particular social group, an applicant must “establish that the group is ‘(1)
composed of members who share a common immutable characteristic, (2) defined
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with particularity, and (3) socially distinct within the society in question’”)
(quoting Matter of M-E-V-G-, 261 I. & N. Dec. 227, 237 (BIA 2014)).
Substantial evidence supports the agency’s denial of CAT relief because
Gomez Valle failed to establish that it is more likely than not that he would be
tortured by or with the consent or acquiescence of the government of El Salvador.
See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The BIA did not abuse its discretion in denying Gomez Valle’s motion to
reopen based on new evidence because Gomez Valle failed to establish that the
evidence was not previously available or could not have been discovered at the
former hearing. See 8 C.F.R. § 1003.2(c)(1); Goel v. Gonzalez, 490 F.3d 735, 738
(9th Cir. 2007) (holding that, if “the allegedly new information . . . was available
or capable of being discovered at [the time of the hearing], it cannot provide a
basis for reopening”). We reject Gomez Valle’s contention that the IJ violated his
due process rights. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring
error to prevail on a due process claim).
We deny Gomez Valle’s request, included in his opening brief, for a remand
to seek a waiver of unlawful presence for adjustment of status. See 8 C.F.R.
§ 212.7(e)(4)(iv).
Gomez Valle’s opposed motion to remand (Docket Entry No. 67) is denied.
See Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir. 2019) (initial notice
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to appear need not include time and date information to vest jurisdiction in the
immigration court).
No. 11-73274: PETITION FOR REVIEW DISMISSED in part and
DENIED in part.
No. 12-71440: PETITION FOR REVIEW DENIED.
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