Tomas Acosta Lopez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMAS H. ACOSTA LOPEZ, AKA Juan No. 16-70896
Antonio Acosta,
Agency No. A073-978-431
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 16, 2019**
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and BAYLSON,*** District
Judge.
Tomas Acosta Lopez, a native and citizen of El Salvador, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) denying his
*
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).
***
The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
application for Temporary Protected Status (“TPS”), asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction pursuant to 8 U.S.C. § 1252. Lopez contests the materiality of a
misrepresentation he made while seeking asylum, employment authorization, and
TPS. Whether his misrepresentation was material presents a mixed question of
fact and law, which we review for substantial evidence. See Khan v. Holder, 584
F.3d 773, 776 (9th Cir. 2009); Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir.
2010). We deny the petition for review.
1. Substantial evidence supports the BIA’s finding that Lopez’s use of a
false identity, including his reliance on a false birth certificate and passport, in
seeking asylum, employment authorization, and TPS constituted a material
misrepresentation under 8 U.S.C. § 1182(a)(6)(C)(i). Lopez does not contest that
he relied on the false identity and documents, but argues that his misrepresentation
was not material because he did not benefit from it. It does not matter whether
Lopez was eligible for the benefits he sought notwithstanding the
misrepresentation. It is enough that his misrepresentation had a natural tendency to
influence his applications for asylum, employment authorization, and TPS. See
Forbes v. I.N.S., 48 F.3d 439, 442 (9th Cir. 1995) (explaining that a
misrepresentation is material if it has “a natural tendency to influence” an agency
decision (citation omitted)). Here, substantial evidence supports the BIA’s finding
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that the misrepresentation was likely to influence Lopez’s asylum claim. Indeed, it
was relevant to the “key element” of establishing his identity. See Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (recognizing identity as one of the
“key elements” of an asylum claim).
Lopez’s motive in misrepresenting his identity is also of no consequence.
The law simply requires that he made the misrepresentation knowingly, and Lopez
does not contest that he did so. See Forbes, 48 F.3d at 442 (discussing willful
misrepresentation to procure a visa under § 1182(a)(19)).
2. Lopez has waived any arguments about the following issues before
this Court: (1) the BIA’s waiver findings about his particular social group,
relocation, and CAT protection; (2) whether he qualified for asylum as a member
of a particular social group; (3) whether he qualified for withholding of removal;
and (4) whether he qualified for protection under CAT. Lopez fails to mention the
BIA’s waiver findings and therefore waives those issues here. See Greenwood v.
F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued
specifically and distinctly in a party’s opening brief.”); see also Fed. R. App. P.
28(a)(8)(A) (requiring an opening brief to contain “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies”).
Although Lopez does baldly state that we should review the BIA’s findings
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about whether he qualified for asylum, withholding of removal, and CAT
protection, he fails to include any specific arguments explaining why. These issues
are therefore also waived. Greenwood, 28 F.3d at 977 (“[A] bare assertion does
not preserve a claim, particularly when, as here, a host of other issues are presented
for review.”).
3. Even if Lopez has not waived his claims petitioning review of the
BIA’s determinations regarding asylum, withholding of removal, and CAT
protection, substantial evidence supports the BIA’s findings on those forms of
relief. Reliance on general criminal activity, such as Lopez’s fear of gang
members, without a specific fear of persecution based on membership in a
protected group, is insufficient to qualify for asylum. See Zetino v. Holder, 622
F.3d 1007, 1016 (9th Cir. 2010) (“[A] desire to be free from harassment by
criminals . . . or random violence by gang members bear no nexus to a protected
ground.”); Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[T]o
demonstrate that a protected ground was at least one central reason for persecution,
an applicant must prove that such ground was a cause of the persecutors’ acts.”
(internal quotation marks omitted)).
Because Lopez did not demonstrate a well-founded fear of persecution, he
necessarily also failed to establish the “clear probability” of persecution that is
required to withhold removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th
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Cir. 2006).
Lopez also failed to put forth arguments or evidence that he will likely be
tortured if he returns to El Salvador, as required to obtain protection under CAT.
See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010) (citing 8 C.F.R.
§ 1208.16(c)(2)).
PETITION FOR REVIEW DENIED.
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