Baltazar Avalos v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALTAZAR AVALOS, No. 12-74094
Petitioner, Agency No. A094-179-097
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Baltazar Avalos, a native and citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ orders dismissing his appeal from an
immigration judge’s (“IJ”) decisions denying his applications for asylum,
withholding of removal, protection under the Convention Against Torture
*
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).
(“CAT”), Temporary Protected Status (“TPS”), cancellation of removal, and
special rule cancellation under the Nicaraguan Adjustment and Central American
Relief Act (“NACARA”). Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for substantial evidence the agency’s findings of fact, and review de novo
constitutional claims and questions of law. Khan v. Holder, 584 F.3d 773, 776 (9th
Cir. 2009). We deny in part, dismiss in part, and grant in part the petition for
review, and we remand.
Substantial evidence supports the agency’s determination that Avalos failed
to establish that the harm he fears in El Salvador is on account of a protected
ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (petitioner’s
“desire to be free from . . . random violence by gang members bears no nexus to a
protected ground.”). Thus, Avalos’ asylum and withholding of removal claims
fail.
Substantial evidence supports the agency’s CAT denial because Avalos
failed to establish that it is more likely than not that he would be tortured by or
with the consent or acquiescence of the government if returned to El Salvador. See
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
We lack jurisdiction to consider Avalos’ contentions as to the agency’s
discretionary determination pertaining to his cancellation of removal claim, see 8
U.S.C. § 1252(a)(2)(B)(i); see also Vilchez v. Holder, 682 F.3d 1195, 1201 (9th
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Cir. 2012), and Avalos does not raise a colorable constitutional claim or question
of law which this court may review, see Martinez-Rosas v. Gonzales, 424 F.3d
926, 930 (9th Cir. 2005) (court retains jurisdiction to review due process
challenges but must allege at least a colorable constitutional violation). We also
lack jurisdiction to review the agency’s denial of Avalos’ NACARA special rule
cancellation claim. See Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010) (the
IIRIRA “expressly precludes” review of eligibility decisions under NACARA).
We reject Avalos’ contention that the agency committed reversible error by
addressing the government’s motion for reconsideration, see Kumar v. Gonzales,
439 F.3d 520, 523-24 (9th Cir. 2006) (noting that violation of agency regulations
reviewed for harmless error), and his contention that the IJ violated his due process
rights by exhibiting bias toward Avalos, see Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2000) (requiring error and prejudice to prevail on a due process claim).
Finally, as to TPS, it is unclear whether the agency found that Avalos was in
the military, and even if he was, mere membership is insufficient to satisfy the
persecutor bar. See 8 U.S.C. §§ 1158(b)(2)(A)(i), 1254a(c)(2)(B)(ii); see also
Kumar v. Holder, 728 F.3d 993, 998 (9th Cir. 2013) (explaining that applicability
of the persecutor bar “requires a particularized evaluation of both personal
involvement and purposeful assistance”) (internal quotation marks and citation
omitted); Miranda Alvarado v. Gonzales, 449 F.3d 915, 927-28 (9th Cir. 2006)
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(explaining that mere membership in an organization is insufficient to satisfy the
persecutor exception) (internal quotation marks and citation omitted). Thus, we
grant the petition for review and remand Avalos’ TPS claim to the agency for
further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S.
12, 16-18 (2002) (per curiam).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; DISMISSED in part;
GRANTED in part; REMANDED.
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