Nestor Ortiz-Cristales v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NESTOR ARIEL ORTIZ-CRISTALES, No. 16-74024
AKA Nestor Ortiz,
Agency No. A204-448-651
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Nestor Ariel Ortiz-Cristales, 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 relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 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 interpretation of the governing statutes and
regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review
for substantial evidence the agency’s factual findings. Garcia-Milian v. Holder,
755 F.3d 1026, 1031 (9th Cir. 2014). We dismiss in part and deny in part the
petition for review.
The agency did not err in finding that Ortiz-Cristales’ proposed social group
based on gang recruitment and extortion was not cognizable. See Reyes v. Lynch,
842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a
particular group, “[t]he applicant must ‘establish that the group is (1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question.’” (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); see also Santos-
Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008) (“young men in El
Salvador resisting gang violence” does not constitute a particular social group),
abrogated in part by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013).
To the extent Ortiz-Cristales raises a new social group in his opening brief, we lack
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jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.
2004) (court lacks jurisdiction to review claims not presented to the agency).
Substantial evidence supports the BIA’s determination that Ortiz-Cristales
failed to establish that the harm he experienced or fears in El Salvador was or
would be on account of a protected ground. See Barrios v. Holder, 581 F.3d 849,
856 (9th Cir. 2009) (rejecting political opinion claim where petitioner did not
present sufficient evidence of political or ideological opposition to the gang’s
ideals or that the gang imputed a particular political belief to the petitioner).
Thus, Ortiz-Cristales’ asylum and withholding of removal claims fail.
Substantial evidence also supports the BIA’s denial of CAT relief because
Ortiz-Cristales failed to show it is more likely than not he would be tortured by or
with the consent or acquiescence of the government if returned to El Salvador. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
In light of this disposition, we do not reach Ortiz-Cristales’ remaining
contentions regarding the merits of his claims. See Simeonov v. Ashcroft, 371 F.3d
532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues
unnecessary to the results they reach).
The record does not support Ortiz-Cristales’ contentions that the BIA
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applied an incorrect legal standard or otherwise erred in considering his claims.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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