Ever Alvarado-Garcia v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVER EDUARDO ALVARADO-GARCIA, No. 19-70753
AKA Ever Eduardo Alvarado-Morales, 19-72582
Petitioner, Agency No. A200-151-429
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2020**
Seattle, Washington
Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,*** District
Judge.
Ever E. Alvarado-Garcia (Alvarado), a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeal’s (BIA) denial of 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
motion to remand for ineffective assistance of counsel and his motion to reopen for
consideration of newly available evidence supporting his claims for withholding of
removal and protection under the Convention Against Torture (CAT). We affirm.1
We review the BIA’s denial of both a motion to remand and a motion to
reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24 (1992);
Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008).
1. The motion to remand was based on Alvarado’s assertion that his
retained attorney at the time of his hearing before the Immigration Judge had been
ineffective. The BIA determined that Alvarado had not shown that his former
counsel had rendered ineffective assistance of counsel, but also held that even if
counsel had been ineffective, Alvarado was not prejudiced because he failed to
proffer any evidence establishing a nexus between his fear of gangs and a protected
ground. Reviewing the record, we find no evidence linking Alvarado’s fear of
gangs to a protected ground. Accordingly, Alvarado has failed to show that the
BIA abused its discretion in denying his motion to remand.
2. Alvarado’s motion to reopen was based on his presentation of additional
evidence. The BIA denied Alvarado’s motion because Alvarado could have, but
failed to, present the additional information in prior proceedings, and also because
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Because the parties are familiar with the facts, we do not discuss them at
length here.
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the additional evidence was not critical. Alvarado admits that the 2002 “acta de
denuncia” has existed since 2002 but argues that he could not get a copy of it until
recently. But because the Immigration Judge found Alvarado credible, the “acta de
denuncia” is cumulative evidence. Further, the evidence Alvarado identifies (the
“acta de denuncia,” country conditions evidence, and a declaration from his
mother) does not show that the Immigration Judge might have come to a different
conclusion had the evidence been considered earlier. Alvarado has not shown that
the BIA abused its discretion in denying his motion to reopen.
3. The record does not compel a contrary conclusion on the CAT claim. To
qualify for relief under CAT, Alvarado “must establish it is more likely than not
that he or she would be tortured if returned to [El Salvador].” Diaz-Reynoso v.
Barr, 968 F.3d 1070. 1089 (9th Cir. 2020). Other than the filing of the “acta de
denuncia” in 2002, there is no evidence that the authorities were aware of
Alvarado’s mistreatment. Moreover, Alvarado’s mother’s assertion that his
grandmother said that the gangs still inquired as to Alvarado’s whereabouts does
not compel a determination that he is likely to be tortured with the government’s
acquiescence if he is returned to El Salvador. There is no evidence that the gangs
ever threatened his grandmother who resided in El Salvador until her recent death,
and who directed Alvarado to file the “acta de denuncia.”
Alvarado’s petitions to review the BIA’s denial of his motion to reopen and
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motion to reopen and denial of immigration relief are DENIED.
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