Napoleon Hernandez Gallardo v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAPOLEON HERNANDEZ GALLARDO, No. 14-72417
Petitioner, Agency No. A094-313-498
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Napoleon Hernandez Gallardo, 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
*
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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. §1252. We review for
substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in part the petition
for review.
Hernandez Gallardo claims he suffered past persecution and fears future
persecution based on his father’s former political activities. We do not address
Hernandez Gallardo’s claim that he is a member of a cognizable social group
because he never presented it to the agency. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004) (court lacks jurisdiction to review claims not raised to the
agency).
Substantial evidence supports the BIA’s conclusion that, even if Hernandez
Gallardo was credible, he failed to establish he suffered past persecution. See
Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (unfulfilled threats
constituted harassment rather than persecution); see Wakkary v. Holder, 558 F.3d
1049, 1060 (9th Cir. 2009) (petitioner did not establish harm to associates was part
of ‘a pattern of persecution closely tied to’ petitioner) (citation omitted).
Substantial evidence also supports the BIA’s conclusion that Hernandez Gallardo
failed to establish a well-founded fear of future persecution in El Salvador. See
2 14-72417
Santos-Lemus v. Mukasey, 542 F.3d 738, 743-44 (9th Cir. 2008) (family members
remaining unharmed undermined applicant’s well-founded fear of persecution
based on family membership), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). Thus, Hernandez
Gallardo’s asylum claim fails.
Because Hernandez Gallardo failed to establish eligibility for asylum, his
withholding of removal claim necessarily fails. See Zehatye, 453 F.3d at 1190.
Finally, substantial evidence also supports the BIA’s denial of CAT relief
because Hernandez Gallardo failed to show it is more likely than not that he would
be tortured by the government of El Salvador, or with its consent or acquiescence.
See Garcia-Milian v. Holder, 755 F.3d 1026, 1034-35 (9th Cir. 2014).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 14-72417