Tejada-Castro v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Saul Dejesus Tejada-Castro, No. 21-251
Petitioner, Agency No. A205-648-309
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 18, 2023**
Portland, Oregon
Before: RAWLINSON, BEA, and SUNG, Circuit Judges.
Saul Dejesus Tejada-Castro, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (“Board”) dismissal of his
appeal from the Immigration Judge’s denial of his application for asylum and
*
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).
withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252(a)(1), and
we deny the petition for review.
Substantial evidence supports the Board’s determination that Tejada
failed to establish a well-founded fear of future persecution because he did not
establish a nexus between a protected ground and potential gang violence in El
Salvador.2 See Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010). Tejada
claimed fear of future persecution based on his membership in a particular
social group comprised of his “Immediate Family Members of [his three
children].”3 However, Tejada did not present any evidence that gangs in El
Salvador identified or threatened Tejada, his wife, or any other relative of
Tejada’s three children. See Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir.
2009) (explaining that the reasonableness of fear of persecution is undercut
1
Tejada did not challenge the denial of his application for protection under the
Convention Against Torture before the Board. Thus, his claim is unexhausted.
See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
2
The BIA assumed that Tejada was credible and his asylum application was
timely. In addition, Tejada did not assert or present evidence that he was
subjected to past persecution. Thus, our review is limited to whether Tejada
established a well-founded fear of future persecution. See Tekle v. Mukasey, 533
F.3d 1044, 1051 (9th Cir. 2008).
3
To the extent that Tejada raises for the first time on appeal that he will be
persecuted on account of a political opinion, this claim is unexhausted, and we
lack jurisdiction to address it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004). Even if the issue were exhausted, “resistance to gang membership is
not a protected ground.” See also Barrios v. Holder, 581 F.3d 849, 854–55 (9th
Cir. 2009), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d
1081, 1093 (9th Cir. 2013) (en banc).
2 21-251
when similarly situated family members remain in the home country
unharmed). Moreover, Tejada does not challenge the Board’s conclusions nor
does he explain why gangs will target him because his children refused the
gangs’ recruitment efforts. See Zetino, 622 F.3d at 1016 (“An alien’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.”). Accordingly, Tejada’s
asylum and withholding of removal claims fail.
PETITION DENIED.
3 21-251