Daniel Galdamez v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL VICENTE GALDAMEZ, No. 14-70422
Petitioner, Agency No. A072-540-451
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Daniel Vicente Galdamez, a native and citizen of El Salvador, petitions pro
se for review of the Board of Immigration Appeals’ order dismissing his appeal
from an immigration judge’s decision denying his applications for special rule
cancellation of removal under § 203 of the Nicaraguan Adjustment and Central
*
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).
American Relief Act (“NACARA”), voluntary departure, asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,
including whether a state statutory crime qualifies as an aggravated felony.
Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020). We review for
substantial evidence the agency’s factual findings. Tamang v. Holder, 598 F.3d
1083, 1088 (9th Cir. 2010). We dismiss in part and deny in part the petition for
review.
We lack jurisdiction to review the agency’s determination that Galdamez is
not eligible for NACARA relief because he failed to establish that he is a
registered ABC class member or applied for asylum prior to April 1, 1990. See
Ixcot v. Holder, 646 F.3d 1202, 1213-14 (9th Cir. 2011) (court is precluded from
reviewing the agency’s factual determination that petitioner is ineligible for special
rule cancellation of removal under NACARA).
The agency did not err in concluding that Galdamez failed to establish that
his 1994 conviction under California Health and Safety Code § 11360(a) was not
an aggravated felony that renders him ineligible for voluntary departure.
See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229c(b); 1101(a)(43)(B); Pereida v.
Wilkinson, 141 S. Ct. 754, 766 (2021) (an inconclusive conviction record is
insufficient to meet applicant’s burden of proof to show eligibility for relief).
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Substantial evidence supports the agency’s determination that Galdamez
failed to establish the harm he experienced in El Salvador was on account of a
protected ground. See Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir. 2000)
(harm occurring because of current membership in military is not persecution on
account of a protected ground). In his opening brief, Galdamez does not challenge
the agency’s determination that he failed to establish the harm he fears in El
Salvador would be on account of a protected ground. See Lopez-Vasquez v.
Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and
argued in a party’s opening brief are waived). Thus, Galdamez’s claims for
asylum, humanitarian asylum, and withholding of removal fail.
Substantial evidence supports the agency’s denial of CAT relief because
Galdamez 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). We reject as unsupported by
the record Galdamez’s contention that the agency erred in its analysis of his claim.
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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