Joaquin Alvarado-Alvarado v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
MAR 21 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOAQUIN ALVARADO-ALVARADO, Nos. 16-73315
AKA Joaquin Alvarado, 17-71138
Petitioner, Agency No. A072-009-938
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2022**
San Francisco, California
Before: W. FLETCHER, GOULD, and COLLINS, Circuit Judges.
Joaquin Alvarado-Alvarado (“Petitioner”), a native and citizen of El
Salvador, petitions for review of two decisions of the Board of Immigration
*
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).
Appeals (“BIA”). In the first, the BIA dismissed Petitioner’s appeal of the
immigration judge’s (“IJ”) denial of his applications for asylum, withholding of
removal, and special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”). In the second, the
BIA denied Petitioner’s motion to reopen based on eligibility for adjustment of
status. We have jurisdiction under 8 U.S.C. § 1252. “We review ‘denials of
asylum [and] withholding of removal . . . for substantial evidence.’” Guo v.
Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018) (quoting Yali Wang v. Sessions, 861
F.3d 1003, 1007 (9th Cir. 2017)). We review the BIA’s denial of a motion to
reopen for abuse of discretion. See Tadevosyan v. Holder, 743 F.3d 1250,
1252–53 (9th Cir. 2014). We dismiss the petition in part and deny it in part.
We have no jurisdiction to review the BIA’s decision denying Petitioner’s
application for special rule cancellation of removal under NACARA. “[The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)]
expressly precludes federal courts from reviewing the agency’s factual
determination that an immigrant is ineligible for ABC benefits or special rule
cancellation of removal under NACARA § 203.” Ixcot v. Holder, 646 F.3d 1202,
2
1213 (9th Cir. 2011).1 “We do retain jurisdiction to review colorable constitutional
claims and questions of law raised in a petition for review of a discretionary denial
of NACARA cancellation.” Monroy v. Lynch, 821 F.3d 1175, 1177 (9th Cir.
2016). Petitioner has not raised any colorable constitutional claims or questions of
law. Instead, Petitioner challenges the agency’s factual determinations about his
eligibility for NACARA relief, including whether he entered the United States
prior to September 19, 1990. We therefore have no jurisdiction over this claim.
Substantial evidence supports the denial of Petitioner’s application for
asylum. Petitioner failed to show that he suffered past persecution on account of a
statutorily protected ground. Petitioner alleged that guerrillas threatened and shot
at him when he was an active member of the Salvadoran army. However,
“persecution resulting from membership in the police or military is insufficient, by
itself, to establish persecution on account of membership in a particular social
group or political opinion.” Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir.
2000). Petitioner also failed to show a well-founded fear of future persecution.
1
Under NACARA, a national of El Salvador may be eligible for cancellation
of removal if he or she is a registered member of the class settlement in American
Baptist Churches v. Thornburgh (ABC), 760 F. Supp. 796 (N.D. Cal. 1991), but
only if the applicant entered the United States on or before September 19, 1990.
See IIRIRA § 309(c)(5)(C)(i)(I)(aa), 8 U.S.C. § 1101 note.
3
“Absent evidence of past persecution, [an applicant] must establish a well-founded
fear of future persecution by showing both a subjective fear of future persecution,
as well as an objectively reasonable possibility of persecution upon return to the
country in question.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir.
2019) (internal quotation marks omitted). Petitioner did not present any evidence
of guerrilla threats to him since his departure from El Salvador over 20 years ago.
Substantial evidence therefore supports the denial of his asylum application.
For the same reasons, substantial evidence supports the denial of
withholding of removal. Davila v. Barr, 968 F.3d 1136, 1142 (9th Cir. 2020) (“An
applicant who fails to satisfy the lower standard for asylum necessarily fails to
satisfy the more demanding standard for withholding of removal.”).
The BIA did not abuse its discretion in denying Petitioner’s motion to
reopen. Petitioner sought to reopen on the ground that his U.S. citizen daughter
had sought a visa on his behalf, and that if it were granted he would apply for
adjustment of status. A noncitizen applying for an immigrant visa “has the burden
of establishing . . . clearly and beyond doubt that he is entitled to be admitted and is
not inadmissible under [8 U.S.C. § 1182].” Valadez-Munoz v. Holder, 623 F.3d
1304, 1308 (9th Cir. 2010) (internal quotation marks omitted). Under 8 U.S.C. §
1182, a noncitizen convicted of a crime involving moral turpitude is inadmissible
4
and ineligible for adjustment of status. Safaryan v. Barr, 975 F.3d 976, 981, 988
(9th Cir. 2020). In Rohit v. Holder, 670 F.3d 1085, 1091 (9th Cir. 2012), we held
that a conviction for soliciting prostitution in violation of Cal. Penal Code § 647constitutes a crime involving moral turpitude. Petitioner was convicted of
soliciting prostitution in violation of Cal. Penal Code § 647. Petitioner is thus
inadmissible and ineligible for adjustment of status on the record before the
agency.2 The BIA did not abuse its discretion in denying Petitioner’s motion to
reopen.
We dismiss the petition to review the BIA’s denial of NACARA relief for
lack of jurisdiction, and deny the remainder of the petition.
PETITION DISMISSED IN PART, DENIED IN PART.
2
The record does not indicate that Petitioner applied for, or has shown that
he is eligible for, a waiver of inadmissibility under 8 U.S.C. § 1182(h).
5