Walter Ayala v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER A. AYALA, AKA Walter Alexis No. 19-72002
Ayala Garcia,
Agency No. A088-966-700
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 1, 2021**
Pasadena, California
Before: KLEINFELD, HIGGINSON,*** and OWENS, Circuit Judges.
Walter A. Ayala, a native and citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ (“BIA”) denial of his untimely motion to
*
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 Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
reopen his applications for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). We review the BIA’s denial of a motion
to reopen for abuse of discretion. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th
Cir. 2017). As the parties are familiar with the facts, we do not recount them here.
We deny the petition.
We previously remanded so that the BIA could consider “Ayala’s family-
membership basis for relief” for his motion to reopen, which the BIA had
overlooked. Ayala v. Whitaker, 747 F. App’x 549, 550 (9th Cir. 2018).
On remand, the BIA did not abuse its discretion in denying Ayala’s motion
to reopen because Ayala failed to show that he was prima facie eligible for asylum
or withholding of removal based on his family membership. See Agonafer, 859
F.3d at 1204 (stating that “[t]o prevail on a motion to reopen on the basis of
changed country conditions,” a petitioner must show, among other things, “prima
facie eligibility for the relief sought” (citation omitted)); Reyes v. Lynch, 842 F.3d
1125, 1132 n.3 (9th Cir. 2016) (stating that to establish prima facie eligibility for
asylum or withholding of removal based on a particular social group, an
applicant’s burden includes showing “a risk of persecution on account of his
membership in the specified particular social group,” which “is often referred to as
the ‘nexus’ requirement” (citation omitted)).
In his opening brief, Ayala does not raise the BIA’s determination that he
2
failed to establish his eligibility for CAT protection, and therefore he has waived
that issue. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments
not raised by a party in its opening brief are deemed waived.”).
PETITION FOR REVIEW DENIED.
3