Carmen Ayala-Calderon v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARMEN AYALA-CALDERON; et al., No. 15-72781
Petitioners, Agency Nos. A206-712-922
A206-712-923
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 26, 2020**
Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.
Carmen Ayala-Calderon and her minor son, natives and citizens of El
Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) decision denying their
application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
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.
Substantial evidence supports the agency’s determination that petitioners
failed to establish the harm they experienced or fear in El Salvador was or would
be on account of a protected ground. See Ayala v. Holder, 640 F.3d 1095, 1097
(9th Cir. 2011) (even if membership in a particular social group is established, an
applicant must still show that “persecution was or will be on account of [her]
membership in such group”); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.
2010) (an applicant’s “desire to be free from harassment by criminals motivated by
theft or random violence by gang members bears no nexus to a protected ground”).
Petitioners’ contention that the BIA did not address their family social group claim
is not supported by the record. Thus, petitioners’ asylum and withholding of
removal claims fail.
Substantial evidence also supports the agency’s denial of CAT relief because
Ayala-Calderon failed to show it is more likely than not she would be tortured by
or with the consent or acquiescence of the government if returned to El Salvador.
See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of
torture).
The record does not support petitioners’ contentions that the agency failed to
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consider evidence or otherwise erred in its analysis of their claims. See Najmabadi
v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency need not write an exegesis on
every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)
(petitioner did not overcome the presumption that the BIA reviewed the record).
We lack jurisdiction to consider petitioners’ contentions as to the IJ’s
evaluation and analysis of their claims that they did not raise to the BIA. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to consider claims not raised to the BIA).
On February 23, 2016, the court granted a stay of removal. The stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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