Yesenia Orellana-Tobar v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YESENIA ESPERANZA ORELLANA- No. 19-72842
TOBAR; et al.,
Agency Nos. A208-752-337
Petitioners, A208-752-338
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Yesenia Esperanza Orellana-Tobar and her son, natives and citizens of El
Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) decision denying their
application for asylum, withholding of removal, and relief under the Convention
*
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).
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We
review for substantial evidence the agency’s factual findings. Conde Quevedo v.
Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We review de novo claims of due
process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738
(9th Cir. 2014). We deny the petition for review.
Petitioners do not challenge the BIA’s dispositive determination that they
waived their challenge to the IJ’s finding that their asylum application was time-
barred and they did not establish an exception to excuse the untimely filing. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not
specifically raised and argued in a party’s opening brief are waived). We do not
address petitioners’ contentions as to the merits of their asylum claim because the
BIA did not deny relief on those grounds. See Santiago-Rodriguez v. Holder, 657
F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we consider
only the grounds relied upon by that agency.” (citation and internal quotation
marks omitted)). Thus, we deny the petition for review as to petitioners’ asylum
claim.
Substantial evidence supports the agency’s determination that petitioners
failed to establish the harm they experienced or fear was or would be on account of
a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an
applicant’s “desire to be free from harassment by criminals motivated by theft or
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random violence by gang members bears no nexus to a protected ground”);
Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (to establish a nexus to
a political opinion ground, petitioners must show “(1) that [they] had either an
affirmative or imputed political opinion, and (2) that [they were] targeted on
account of that opinion.”). Thus, petitioners’ withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
petitioners failed to show it is more likely than not they will 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).
Petitioners’ contentions that the agency ignored evidence or otherwise erred
in its analysis are not supported by the record. See Fernandez v. Gonzales, 439
F.3d 592, 603 (9th Cir. 2006) (concluding petitioner did not overcome the
presumption that the BIA reviewed the record); Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000) (requiring error to prevail on a due process claim).
The temporary stay of removal remains in place until issuance of the
mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise
denied.
PETITION FOR REVIEW DENIED.
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