Opinion
17-70612
09-23-2022
WILFREDO ROJAS, AKA Wilfredo Antonio Rojas-Galvez, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted September 21, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A071-595-090
Before: WARDLAW and IKUTA, Circuit Judges, and VRATIL, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Wilfredo Rojas, a native and citizen of El Salvador, seeks review of a decision by the Board of Immigration Appeals dismissing his appeal of a decision by an immigration judge ("IJ") that denied his applications for adjustment of status, special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). We dismiss the petition in part and deny it in part.
1. We have no jurisdiction to review discretionary determinations of adjustment of status or special rule cancellation of removal unless the petitioner's challenge raises a colorable constitutional claim or question of law. 8 U.S.C. §§ 1252(a)(2)(B)(i), 1252(a)(2)(D); Monroy v. Lynch, 821 F.3d 1175, 1177 (9th Cir. 2016). Here, the Board affirmed the IJ's denial of Petitioner's applications in the exercise of discretion. We therefore lack jurisdiction to review these discretionary determinations.
Petitioner's challenges to the Board's decisions do not raise a colorable constitutional claim or question of law. Petitioner argues we have jurisdiction to review the IJ's conclusion that his domestic battery and DUI offenses constitute "particularly serious crime[s]," but neither the IJ nor the Board determined that Petitioner had been convicted of particularly serious crimes. The IJ and the Board merely factored the relative severity of Petitioner's offenses into the discretionary determination. Petitioner also argues that the IJ abused his discretion in describing his domestic battery offense as a "beating" and violated his due process rights by failing to perform further fact finding about the circumstances of his criminal offenses and his good moral character. These challenges do not raise a colorable constitutional claim or question of law because they assert no grounds for relief other than disagreement with how the Board performed its discretionary determination. Monroy, 821 F.3d at 1177-78 (Colorable constitutional claim or question of law does not arise when a petitioner "simply disagrees with the agency's weighing of his positive equities and the negative factors."); Sanchez-Cruz v. I.N.S., 255 F.3d 775, 779 (9th Cir. 2001) ("[A]buse of discretion claims recast as due process violations do not constitute colorable due process claims over which we may exercise jurisdiction."). Because Petitioner asserts no colorable constitutional claim or question of law, this Court lacks jurisdiction to hear his claims.
2. Petitioner argues that the Board and the IJ erred in determining that he did not qualify for asylum. After determining that Petitioner did not qualify, however, the IJ independently denied asylum in the exercise of discretion based on the "extremely adverse factors" in Petitioner's case, namely his criminal offenses. Exercising our jurisdiction under 8 U.S.C. § 1252(b)(4)(D), we find that the Board did not abuse its discretion in affirming the IJ's discretionary denial of asylum. The IJ concluded that-based on Supreme Court precedent about the severity of domestic violence, evidence of high rates of recidivism for offenders, the fact that Petitioner had a prior arrest for domestic violence and that he hit a woman with a belt-Petitioner's conviction for domestic battery was a "particularly adverse" discretionary factor. The IJ also concluded that Petitioner's DUI conviction was an "extremely adverse discretionary factor" because it was criminal behavior committed during Petitioner's removal proceedings.
3. Substantial evidence supports the Board's determination that Petitioner did not prove eligibility for withholding of removal or CAT protection. Applicants for withholding of removal and CAT protection must establish a clear probability- meaning it is "more likely than not"-that they will be persecuted or tortured if they return to their home countries. East Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 674 (9th Cir. 2021).
To be eligible for withholding of removal, Petitioner must produce evidence from which it is reasonable to believe that the harm was motivated at least in part by an actual or implied protected ground. Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2009). Here, Petitioner testified that, in 1982, kidnappers abducted and possibly murdered his father, the mayor of Acajutla, during the Salvadoran Civil War. About two months later, intruders also ransacked Petitioner's residence searching for weapons. Petitioner did not present evidence about the identities or motives of the kidnappers or intruders, however, and could only speculate that the attacks were politically motivated. Therefore, Petitioner did not show that it is more likely than not that a protected ground motivated the attacks at least in part. Siquina Cacatzum v. Mukasey, 308 Fed.Appx. 130, 131-32 (9th Cir. 2009) (Board properly denied asylum where petitioner merely speculated that guerillas might have persecuted him due to brother's membership in military group.).
Petitioner also testified that gang members in El Salvador killed his nephew because his nephew did not want to join a gang, but he did not present evidence that this would cause him to experience persecution for an "anti-gang opinion imputed to him." Because Petitioner provided mere speculation that he would experience persecution, but did not show a clear probability of persecution, he was ineligible for withholding of removal. Nagoulko v. I.N.S., 333 F.3d 1012, 1018 (9th Cir. 2003) (holding that speculative possibilities are insufficient to establish basis for fear of future persecution).
As to protection under CAT, Petitioner alleges that the Salvadoran government's failure to prevent past incidents of violence against his family and the violent country conditions in El Salvador subject him to a clear probability of torture if he returns to El Salvador. Petitioner provides no evidence, however, to support this speculation. A government's alleged failure or refusal to investigate past crimes does not on its own "compel the conclusion that the police acquiesced in the attack" and thus does not support Petitioner's claim of future acquiescence by the government to future attacks. Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Further, without individualized evidence showing a specific risk of torture to Petitioner, general evidence of violent country conditions does not warrant CAT protection. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Because Petitioner has presented no evidence to support his claims, he has not shown a clear probability of torture if he returns to El Salvador and is ineligible for CAT protection.
PETITION DISMISSED IN PART AND DENIED IN PART.
The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation.