Jose Beltran v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE J. BELTRAN, AKA Javier Beltran Nos. 16-70437
Aleman, AKA Jose Javier Beltran Aleman, 16-72019
AKA Javier Beltran Morales, AKA Jose
Beltran Morales, AKA Jose Javier Aleman, Agency No. A095-137-464
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted November 9, 2020**
Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.
In these consolidated petitions, Jose J. Beltran, a native and citizen of El
Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these case are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for withholding of removal and relief under the Convention Against
Torture (“CAT”) (petition No. 16-70437), and the BIA’s order denying his motion
to reopen removal proceedings (petition No. 16-72019). Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s
factual findings, including determinations regarding social distinction. Conde
Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review de novo the
legal question of whether a particular social group is cognizable, except to the
extent that deference is owed to the BIA’s interpretation of the governing statutes
and regulations. Id. We review for an abuse of discretion the BIA’s denial of a
motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We
deny the petition for review in No. 16-70437, and we deny in part and dismiss in
part the petition for review in No. 16-72019.
As to petition No. 16-70437, substantial evidence supports the agency’s
determination that Beltran failed to establish his proposed social groups are
socially distinct. See Conde Quevedo, 947 F.3d at 1243 (substantial evidence
supported the agency’s determination that petitioner’s proposed social group was
not cognizable because of the absence of society-specific evidence of social
distinction). Thus, the agency did not err in concluding that Beltran failed to
establish membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d
1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular
2 16-70437
social group, “[t]he applicant must ‘establish that the group is (1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question’” (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). In light of this
conclusion, we do not reach Beltran’s contentions as to nexus. See Simeonov v.
Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts are not required to decide
issues unnecessary to the results they reach).
We reject Beltran’s contention that the agency erred in finding that
resistance to gang recruitment did not constitute a political opinion. See Santos-
Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (“[A] general aversion to
gangs does not constitute a political opinion”) abrogated on other grounds by
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013).
Thus, Beltran’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Beltran 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); see also Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (generalized evidence of violence and crime is
insufficient to meet the standard for relief for CAT). We reject as unsupported by
the record Beltran’s contention that the IJ failed to address his CAT claim.
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As to petition No. 16-72019, the BIA did not abuse its discretion in denying
Beltran’s motion to reopen where he failed to establish prima facie eligibility for
asylum. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (“The
BIA is entitled to deny a motion to reopen where the applicant fails to demonstrate
prima facie eligibility for the underlying relief.”).
The BIA did not abuse its discretion or err in denying Beltran’s motion to
reopen to apply for Temporary Protected Status before the IJ.
Finally, we lack jurisdiction to review the BIA’s decision not to reopen
proceedings sua sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)
(“[T]his court has jurisdiction to review Board decisions denying sua sponte
reopening for the limited purpose of reviewing the reasoning behind the decisions
for legal or constitutional error.”).
As stated in the court’s May 11, 2016 order, the temporary stay of removal
remains in place until issuance of the mandate.
No. 16-70437: PETITION FOR REVIEW DENIED.
No. 16-72019: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
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