Oscar Rivera-Oliva v. Eric Holder, Jr. , 532 F. App'x 685 ( 2013 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             JUN 26 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    OSCAR ARMANDO RIVERA-OLIVA,                      No. 09-71162
    AKA Oscar Oliva, AKA Oscar Rivera,
    Agency No. A094-314-274
    Petitioner,
    v.                                             MEMORANDUM *
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted April 12, 2013 **
    Pasadena, California
    Before: RAWLINSON and BYBEE, Circuit Judges, and TIMLIN, Senior District
    Judge.***
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 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 Robert J. Timlin, Senior District Judge for the U.S.
    District Court for the Central District of California, sitting by designation.
    Oscar Armando Rivera-Oliva (Rivera-Oliva) petitions for review of the
    decision by the Board of Immigration Appeals (BIA) denying his applications for
    asylum, withholding of removal, cancellation of removal, and protection under the
    Convention Against Torture Act (CAT).
    1.      The BIA correctly determined that Rivera-Oliva’s application for
    asylum was time-barred. Rivera-Oliva failed to establish changed or extraordinary
    circumstances to excuse his untimely filing. See Husyev v. Mukasey, 
    528 F.3d 1172
    , 1181-82 (9th Cir. 2008) (recognizing an exception to the asylum filing
    deadline when the petitioner shows extraordinary circumstances directly related to
    the delay).
    2.      Although Rivera-Oliva’s asylum was time-barred, he may
    nevertheless apply for withholding of removal. See Tamang v. Holder, 
    598 F.3d 1083
    , 1091 (9th Cir. 2010). A person must establish a clear probability of
    persecution to qualify for withholding of removal. See 
    id. A personal vendetta
    or
    revenge does not satisfy this requirement. See Molina-Morales v. INS, 
    237 F.3d 1048
    , 1051-52 (9th Cir. 2001). This record does not compel the conclusion that
    Rivera-Oliva would more probably than not be persecuted if he returned to El
    2
    Salvador. See Kaiser v. Ashcroft, 
    390 F.3d 653
    , 661 (9th Cir. 2004) (articulating
    standard).
    3.     Rivera-Oliva failed to raise before the BIA the argument that he was a
    member of a particular social group. Therefore, this argument is unexhausted. See
    Pagayon v. Holder, 
    675 F.3d 1182
    , 1188 (9th Cir. 2011) (noting that we only
    review issues after a petitioner has exhausted all administrative remedies). In any
    event, Rivera-Oliva failed to establish that he was a member of a particular social
    group “united by a voluntary association.” Henriquez-Rivas v. Holder, 
    707 F.3d 1081
    , 1084 (9th Cir. 2013) (en banc).
    4.     To qualify for CAT relief, a petitioner must show that it is more likely
    than not that he would be tortured with the acquiescence of the government if
    removed to the country of origin. See Zheng v. Ashcroft, 
    332 F.3d 1186
    , 1194-95
    (9th Cir. 2003). Substantial evidence supported the BIA’s determination that
    Rivera-Oliva was not entitled to CAT protection, because he failed to present
    evidence of acquiescence of the government of El Salvador. See 
    id. at 1193-95. 3
          5.    To qualify for cancellation of removal a petitioner must establish good
    moral character for the requisite period. See Camacho-Cruz v. Holder, 
    621 F.3d 941
    , 942 (9th Cir. 2010). The BIA affirmed the ruling by the immigration judge
    that Rivera-Oliva did not meet the good moral character requirement because he
    was incarcerated for more than 180 days. See also Arreguin-Moreno v. Mukasey,
    
    511 F.3d 1229
    , 1233 (9th Cir. 2008) (explaining that a petitioner cannot meet the
    good moral character requirement if she served 180 days or more in a penal
    institution). The record supports the agency’s determination.
    PETITION FOR REVIEW DENIED.
    4