Jose Martin-Oliva v. Eric Holder, Jr. ( 2011 )

FILED
NOT FOR PUBLICATION NOV 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE MARTIN-OLIVA, No. 10-72145
Petitioner, Agency No. A095-789-627
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Jose Martin-Oliva, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
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).
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v.
Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference
is owed to the BIA’s determination of the governing statutes and regulations,
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for
substantial evidence factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-
85 (9th Cir. 2006). We deny the petition for review.
Apart from conclusory assertions, Martin-Oliva does not make any argument
challenging the agency’s denial of asylum or its denial of his “equal protection”
claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues
not specifically raised and argued in a party’s opening brief are waived).
With respect to withholding of removal, substantial evidence supports the
BIA’s determination that Martin-Oliva failed to establish past persecution or a
clear probability of persecution on account of a protected ground. See INS v. Elias-
Zacarias, 502 U.S. 478, 483-84 (1992) (“the statute makes motive critical”);
Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (petitioner presented
no evidence that his opposition to the gang’s criminal activity was based on
political opinion, that he was politically or ideologically opposed to the ideals the
gang espoused, or that the gang imputed a political belief to him). Further, apart
from a conclusory assertion, Martin-Oliva does not challenge the BIA’s rejection
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of his claim based on membership in a particular social group. See Martinez-
Serrano, 94 F.3d at 1259-60. Accordingly, his withholding of removal claim fails.
In addition, substantial evidence supports the BIA’s denial of CAT relief
because Martin-Oliva failed to establish it is more likely than not that he would be
tortured at the instigation of or with the acquiescence of the government if
removed to El Salvador. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir.
2008). We reject Martin-Oliva’s contention that the BIA improperly considered
and analyzed his CAT claim as belied by the record. See 8 C.F.R. § 208.18(a)(1)
(defining torture to involve “severe pain or suffering . . . inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity”). Finally, we reject Martin-Oliva’s related
due process claim because the BIA considered the country report in the record.
PETITION FOR REVIEW DENIED.
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