Benjamin Ortega v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
AUG 20 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN D. ORTEGA, No. 12-72633
Petitioner, Agency No. A073-420-819
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 18, 2015**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Benjamin Ortega (“Ortega”), a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’s (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) denial of his application for asylum. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a), and we deny the petition for review.
*
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).
Ortega contends that he suffered past persecution in the form of physical abuse
by his father when he was a child and has a well-founded fear of future persecution
on this basis were he to be removed to El Salvador. “To establish eligibility for
asylum, an applicant must demonstrate his or her status as a refugee.” Melkonian v.
Ashcroft, 320 F.3d 1061, 1064 (9th Cir. 2003) (citing Sangha v. INS, 103 F.3d 1482,
1487 (9th Cir.1997)). On a claim of past persecution committed by a private
individual, the applicant bears the burden of showing that the government is unable
or unwilling to control the persecutor. See Afriyie v. Holder, 613 F.3d 924, 931 (9th
Cir. 2010).
Reviewing the Board’s conclusion that Ortega failed to establish past
persecution for substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1060 (9th
Cir. 2009), we determine that the Board was not compelled to find that Ortega is
entitled to asylum. See Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007). In
particular, Ortega did not demonstrate that El Salvador’s government was unwilling
or unable to control Ortega’s father. Ortega did not provide evidence that child abuse
was widespread and not controlled by the government, that others have made reports
of similar incidents to no avail, or that El Salvador’s laws and customs deprive
children of governmental protection. See Rahimzadeh v. Holder, 613 F.3d 916,
922–23 (9th Cir. 2010). His bare two-sentence pronouncement that “[c]hild abuse has
2
been and continues to be a ‘serious and widespread problem’” and “[t]he authorities’
response to the child abuse epidemic has been ‘ineffective and unsupportive’” does
not suffice to carry his burden.1
As the Board correctly determined that Ortega did not establish that he suffered
past persecution, the burden of proof it applied to his claim was proper. That Ortega
is now an adult male who concedes that he no longer fears his elderly father and has
similarly-situated siblings living safely in El Salvador demonstrates that the Board’s
decision was supported by substantial evidence. Lastly, as Ortega did not establish
either past persecution or the possibility of suffering serious harm upon returning to
El Salvador, the Board did not abuse its discretion in affirming the IJ’s denial of
Ortega’s claim for humanitarian asylum. See Hanna v. Keisler, 506 F.3d 933, 939
(9th Cir. 2007) (citing 8 C.F.R. § 1208.13(b)(1)(iii)).
PETITION DENIED.
1
Ortega’s contention that the Board engaged in impermissible fact finding is
unavailing. Board precedent specifically identifies determinations of “whether the
facts established by a particular alien amount to past persecution” as mixed questions
of law and fact that the Board may review de novo. Matter of V-K-, 24 I. & N. Dec.
500, 501–02 (BIA 2008) (internal quotation marks and citation omitted), overruled
on other grounds by Matter of Z-Z-O-, 26 I. & N. Dec. 586 (BIA 2015). Furthermore,
even if the Board engaged in impermissible fact finding, remand would be futile, see
Najmabadi v. Holder, 597 F.3d 983, 991 (9th Cir. 2010), as Ortega cannot
demonstrate a well-founded fear of future persecution, regardless of where the burden
rests. Evidence in the form of changed country conditions, changed circumstances,
and the possibility of relocation, unambiguously undermines Ortega’s asylum
application and leaves no doubt as to the outcome.
3