Oscar Ayala Platero v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR AYALA PLATERO, No. 21-70641
Petitioner, Agency No. A200-704-983
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney Gen-
eral,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 27, 2022**
San Francisco, California
Before: GRABER and OWENS, Circuit Judges, and BAKER,*** International Trade
Judge.
Oscar Ayala Platero, a citizen of El Salvador, petitions for review of a Board
of Immigration Appeals (BIA) decision dismissing his appeal from the order of an
*
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).
***
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
Immigration Judge (IJ) denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT).
We “review the BIA’s denials of asylum, withholding of removal, and CAT
relief for ‘substantial evidence’” and will reverse only if the evidence compels a
contrary conclusion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).
“[W]hen, as here, the BIA’s ‘phrasing seems in part to suggest that it did conduct an
independent review of the record,’ but the BIA’s analysis on the relevant issues is
confined to a ‘simple statement of a conclusion,’ we ‘also look to the IJ’s . . . decision
as a guide to what lay behind the BIA’s conclusion.’” Shrestha v. Holder, 590 F.3d
1034, 1039 (9th Cir. 2010) (quoting Avetova-Elisseva v. INS, 213 F.3d 1192, 1197
(9th Cir. 2000)).
1. Ayala first argues that he established that his membership in a particular
social group composed of “land owning Salvadorans” was or would be “at least one
central reason” or “a reason” for the harm he suffered. The declarations that he cites
do not support his argument because none addresses whether the gang targeted him
because he was a landowner. At most, the declarations are ambiguous on this point,
so they cannot compel a contrary conclusion. See Nahrvani v. Gonzales, 399 F.3d
1148, 1154 (9th Cir. 2005). Substantial evidence therefore supported the BIA’s con-
clusion.
2. Ayala also contends that the BIA erred by failing to consider his claims
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based on an alternate social group of “persons in El Salvador taking concrete steps
to oppose gang membership and gang authority.” The BIA ruled that Ayala waived
this issue because he did not challenge the IJ’s findings on appeal. The brief Ayala
filed with the BIA raised only “status as a land-owning Salvadoran” as a particular
social group. If a petitioner files a brief, “the BIA is entitled to look to the brief for
an explication of the issues that petitioner is presenting to have reviewed. Petitioner
will therefore be deemed to have exhausted only those issues he raised and argued
in his brief before the BIA.” Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009)
(en banc) (per curiam). The BIA was therefore entitled to conclude that Ayala
waived the “oppose gang membership” theory.
3. Ayala also asserts that the BIA erred by denying his appeal without a hear-
ing. On his notice of appeal, however, he checked the box saying he did not desire
oral argument before the BIA. The BIA did not err in not holding a hearing when
Ayala specifically declined to request one.
4. The BIA correctly found that Ayala did not meaningfully challenge the IJ’s
denial of CAT relief, so he waived that issue. Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004). Neither Ayala’s notice of appeal, nor his BIA appeal brief, addressed
the CAT anywhere.
5. Finally, Ayala argues that the BIA was obligated to remand per a settlement
agreement in Mendez Rojas v. Wolf, No. 2:16-cv-01024-RSM (W.D. Wash. July 28,
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2020). The BIA declined to remand because the IJ’s findings—which the Board af-
firmed—would preclude Ayala from establishing eligibility for asylum, such that
even if the IJ had deemed his asylum application timely filed the outcome would not
change. The cited IJ findings, in turn, included a conclusion that Ayala failed to
demonstrate that the harm he suffered was on account of his membership in a par-
ticular social group. As discussed above, the BIA’s conclusion on the “particular
social group” issue was supported by substantial evidence. That, in turn, also means
that the BIA’s ruling that the result would not change on remand was correct. See
Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (explaining that applicants
for asylum or withholding of removal must demonstrate existence of particular so-
cial group, personal membership therein, and persecution on account of member-
ship).
Ayala relies on Velasquez-Martinez v. Garland, 852 F. App’x 240 (9th Cir.
2021) (mem.), to argue that the BIA was obligated to remand. Velasquez-Martinez
is not precedential and is also distinguishable. There, the BIA failed to address the
petitioner’s assertion of class membership and failed to address some evidence in
the record. Id. at 241–43. Here, in contrast, the BIA did address the issue of Mendez
Rojas class membership and considered the evidence.
PETITION DENIED.
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