Ana Anaya De Nieto v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA GLORIBEL ANAYA DE NIETO; No. 16-71769
ANDRES ANAYA NIETO,
Agency Nos. A206-720-731
Petitioners, A206-720-732
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Ana Gloribel Anaya De Nieto and Andres Anaya Nieto, 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
*
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).
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review factual findings for substantial evidence. Zehatye v. Gonzales,
453 F.3d 1182, 1184-85 (9th Cir. 2006). We dismiss in part and deny in part the
petition for review.
We lack jurisdiction to consider petitioners’ pattern and practice contentions
and their newly proposed social groups. See Barron v. Ashcroft, 358 F.3d 674,
677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented
below).
Substantial evidence supports the determination that petitioners failed to
establish they were or would be persecuted on account of a political opinion or
their membership in a family-based social group. See Ayala v. Holder, 640 F.3d
1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is
established, an applicant must still show that “persecution was or will be on
account of his membership in such group”); Barrios v. Holder, 581 F.3d 849, 856
(9th Cir. 2009) (rejecting political opinion claim where petitioner did not present
sufficient evidence of political or ideological opposition to the gang’s ideals or that
the gang imputed a particular political belief to the petitioner); see also 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 random violence by gang members
bears no nexus to a protected ground”). In their opening brief, petitioners do not
2 16-71769
challenge the BIA’s determination that a recruitment-based social group is not
cognizable. 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).
Thus, petitioners’ asylum and withholding of removal claims fail.
Substantial evidence also supports the BIA’s denial of CAT relief because
Anaya De Nieto failed to show it is more likely than not she 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).
We reject as unsupported by the record petitioners’ contentions that the BIA
and IJ violated their equal protection rights.
As stated in the court’s August 25, 2016 order, the temporary stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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