United States v. 2010-08-30 | 08-70390 | ZETINO V. HOLDER | precedential | opinion |

08-70390Court of Appeals for the Ninth Circuit30 août 2010

Texte intégral

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RONALD M. ZETINO, No. 08-70390
Petitioner, Agency No.
v. A094-175-859

ERIC H. HOLDER JR., Attorney ORDER AND
General, AMENDED
Respondent. OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 9, 2009—Pasadena, California
Filed February 18, 2010
Amended August 30, 2010
Before: Cynthia Holcomb Hall and Richard C. Tallman,
Circuit Judges, and David M. Lawson,* District Judge.
Opinion by Judge Tallman
*The Honorable David M. Lawson, United States District Judge for the
Eastern District of Michigan, sitting by designation.
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COUNSEL
Niels W. Frenzen, Esq., (argued), University of Southern Cal-
ifornia Law School Immigration Clinic, Los Angeles, Califor-
nia, for petitioner Zetino.
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Sunah Lee, Esq., (argued), U.S. Department of Justice, Civil
Division/Office of Immigration Litigation, Washington, D.C.,
Ronald E. LeFevre, Esq., Department of Homeland Security,
Office of the District Counsel, Los Angeles, California, for
respondent Attorney General Holder.
ORDER
The opinion filed on February 18, 2010, and reported at
596 F.3d 517, is amended. The amended opinion filed concur-
rently with this order is substituted in its place.
With the filing of the amended opinion, the panel has unan-
imously voted to deny the petition for panel rehearing. Judge
Tallman has voted to deny the petition for rehearing en banc,
and Judges Hall and Lawson so recommend. The full court
has been advised of the petition for rehearing and petition for
rehearing en banc, and no judge of this court has requested a
vote on the petition for rehearing en banc. Fed. R. App. P.
35(f).
The petition for rehearing and the petition for rehearing en
banc are DENIED. No further petitions for rehearing or
rehearing en banc may be filed.
OPINION
TALLMAN, Circuit Judge:
Ronald Zetino (“Zetino”), a native and citizen of El Salva-
dor, petitions for review of a Board of Immigration Appeals
(“BIA”) decision upholding an Immigration Judge’s (“IJ”)
denial of his applications for asylum and withholding of
removal. We deny his challenges on the merits.
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I
Zetino illegally entered the United States on December 5,
1989, at San Ysidro, California. Zetino was detained on May
1, 2001, and placed in removal proceedings on May 15, 2001.
He was charged with removability pursuant to Section
212(a)(6)(A)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in
the United States without being admitted or paroled.
At Zetino’s first removal hearing on May 31, 2001, the IJ
informed him of his right to counsel and right to call wit-
nesses on his behalf. The IJ also provided Zetino with a list
of free legal aid services. Zetino acknowledged those rights,
waived them, admitted to the allegations against him, and
conceded removability. Zetino informed the IJ that he feared
persecution upon return to El Salvador, at which time the IJ
gave him an application for asylum. At a continued removal
hearing on June 11, 2001, Zetino did not submit an applica-
tion for asylum, but instead requested a continuance to find an
attorney. The IJ granted that request, noting that Zetino
claimed to have obtained an attorney who had decided not to
represent him “at the last minute.”
Zetino’s next removal hearing took place on September 27,
2005, after an additional continuance during which he
remained incarcerated. At that hearing, the IJ once again
informed Zetino of his right to counsel, which Zetino
acknowledged. The IJ then granted Zetino yet another contin-
uance to obtain counsel. Zetino finally filed his application for
asylum on October 25, 2005.
Zetino’s hearing on the merits of his asylum application
began on May 14, 2007. Zetino appeared pro se, apparently
unable to obtain counsel in the six years since his first hear-
ing. The IJ took testimony from Zetino, his mother, and his
sister.
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Zetino testified that he was afraid to return to El Salvador
because he had been told that in 1993 six members of his fam-
ily had been killed by gunfighters attempting to steal his
grandfather’s land. Zetino noted that this event took place
after his illegal arrival in the United States and that he only
found out about it through word of mouth. When the IJ asked
him to explain the motive for the murders, Zetino responded,
“Some farmers who supposedly . . . were my grandfather’s
friends and they wanted more land so they could cultivate on
that [sic] and my grandfather did not want to release the land
to them.” Zetino also testified that he feared gang members
would attempt to recruit or harm him. He stated simply,
“There are too many gang members. I don’t think that I will
be able to work there at [inaudible] with ease.”
Zetino’s mother testified that masked gunmen had killed
members of her family for “revenge because of some proper-
ties, some land [sic].” Zetino’s sister testified that she was not
in El Salvador at the time of the alleged killings.
After taking testimony, the IJ rendered an oral decision in
which she determined Zetino had testified credibly but still
failed to demonstrate a well-founded fear of persecution based
on statutorily-protected grounds. The IJ ruled that Zetino
failed to establish a nexus between the murder of his relatives
or gang recruitment and a protected ground such as race, reli-
gion, nationality, membership in a particular social group, or
political opinion. As to the killing of his relatives, the IJ noted
that it “was clearly a personal dispute, if anything, amongst
the ones who wanted to cultivate the land next door . . . . This
is not a basis for asylum or withholding of removal under the
Act.”
On September 6, 2007, Zetino filed a pro se Notice of
Appeal to the BIA stating that he disagreed with the IJ’s deci-
sion that “[he] didn’t prove [his] case.” Zetino’s Notice of
Appeal contained a well-articulated statement of his case. He
argued that his “fear of persecution and torture is based on the
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assassination of [his] family members and relatives by 11
masked gunmen who assassinated them and who are still at
large.” He also stated that he feared “gang members who are
at large, who sell drugs and arms, who also hurt and rob peo-
ple like [him], because [he] also [has] tattoos (none gang-
related) and they would mistake [him] for being a rival gang
member.”
On October 20, 2007, Zetino was transferred from the San
Pedro Detention Complex in Los Angeles, California, to the
South Texas Detention Complex in Pearsall, Texas. On Octo-
ber 23, 2007, the BIA issued a briefing schedule notifying
Zetino of a November 13, 2007, deadline to file an appellate
brief. Zetino properly notified the BIA of his move with a
change of address form on October 31, 2007, and as a result
the BIA granted him a filing extension from his original dead-
line of November 13, 2007, to November 30, 2007. Despite
notice of the extension, Zetino did not file a brief before this
extended deadline.
Five days after missing the filing deadline, on December 5,
2007, Zetino secured the representation of the University of
Southern California Law School Immigration Clinic. On
December 14, 2007, his counsel filed a Motion to Accept Late
Brief and Motion for Extension of Time requesting the BIA
accept a late brief or extend the filing deadline to “accommo-
date student exams and the ensuing winter break.” The BIA
found “the reasons stated by the respondent insufficient for
[it] to accept an untimely brief in [its] exercise of discretion.”
The BIA also denied the extension request “as it was received
after the expiration of the filing deadline.”
Despite Zetino’s failure to properly file an appellate brief,
the BIA considered the merits of his application because he
had sufficiently articulated his challenges to the IJ’s decision
in his Notice of Appeal. The BIA subsequently upheld the IJ’s
determination on the merits. The BIA reasoned that neither
Zetino’s fear of “the eleven unidentified masked gunmen who
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fatally shot his aunt, uncle, and at least three cousins in 1993
and who remain at large” nor his fear of “gang members
[who] might mistake him for a member of a rival gang
because he has tattoos” established a well-founded fear of
persecution “on account of his race, religion, nationality,
membership in a particular social group, or political opinion.”
The BIA supported its conclusion by noting,
It is well-established that an asylum applicant’s fear
of harm resulting from general conditions of vio-
lence and civil unrest affecting the home country’s
populace as a whole does not constitute a “well-
founded fear of persecution” within the meaning of
the Act.
Furthermore, the BIA reasoned that Zetino’s fear of harm by
criminals or gangs did not “establish that he belongs to a ‘par-
ticular social group’ within the meaning of section
101(a)(42)(A) of the Act.” The BIA relied on our decision in
Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007), where we
held that a tattooed alien’s membership in a violent criminal
gang was not “social group” membership for withholding of
removal purposes.
Zetino now timely petitions for review of the BIA’s deci-
sion to reject his untimely brief as well as its decision to
uphold the IJ’s ruling denying his applications for asylum and
withholding of removal.1 He presents three distinct chal-
lenges, two procedural and one substantive.
First, Zetino claims the BIA’s discretionary ruling refusing
to accept his untimely brief or to extend the filing period was
1In his petition for review, Zetino does not challenge the IJ’s denial of
his application for protection under the United Nations Convention
Against Torture. Accordingly, he has waived any challenge to that deter-
mination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.
1996).
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a violation of his due process rights and an abuse of discre-
tion. We find that the BIA’s denial of the brief in this instance
neither violated Zetino’s due process rights nor constituted an
abuse of discretion.
Second, Zetino claims the IJ violated his due process rights
by failing to develop a factually complete record or advise
him of his right to counsel. This argument is without merit
and is unsupported by the record.
Third, Zetino claims substantial evidence does not support
the BIA’s decision that he failed to demonstrate a nexus
between the harm he allegedly faces upon return to El Salva-
dor and a protected ground such as race, religion, nationality,
membership in a particular social group, or political opinion.
Zetino fears return to El Salvador because in 1993 unidenti-
fied masked gunmen murdered members of his family moti-
vated by a desire to steal his grandfather’s land. Neither that
event nor his fear of gangs bears a nexus to a protected
ground.
Accordingly, we deny the petition for review.
II
Due process challenges to immigration proceedings are
reviewed de novo. Padilla v. Ashcroft, 334 F.3d 921, 923 (9th
Cir. 2003). We review petitions for review of the BIA’s deter-
mination that a petitioner does not qualify for asylum or with-
holding of removal under the highly deferential “substantial
evidence” standard. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Under this standard, the petition for review must be
denied if the BIA’s determination is “supported by reason-
able, substantial, and probative evidence on the record consid-
ered as a whole.” Id. The petition for review may be granted
only if the evidence presented “was such that a reasonable
factfinder would have to conclude that the requisite fear of
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persecution existed.” Id. (citing NLRB v. Columbian Enamel-
ing & Stamping Co., 306 U.S. 292, 300 (1939)).
III
Because Zetino filed his application for asylum after the
May 11, 2005, effective date of the REAL ID Act of 2005, we
have jurisdiction under Section 242 of the INA, 8 U.S.C.
§ 1252, as amended by the Act, Pub. L. No. 109-13, Div. B.,
119 Stat. 231 (May 11, 2005).
A
Zetino first challenges the BIA’s rejection of his untimely
brief and refusal to extend the filing period as an abuse of dis-
cretion and a violation of his due process rights. Thus, we are
asked to review four challenges: (1) an abuse of discretion
challenge to the denial of the motion to accept a late brief; (2)
a due process challenge to the denial of the motion to accept
a late brief; (3) an abuse of discretion challenge to the denial
of the motion to extend the filing period; and (4) a due pro-
cess challenge to the denial of the motion to extend the filing
period.
We limit our analysis to Zetino’s challenges to the BIA’s
denial of his motion to accept a late brief. We construe
Zetino’s motion, filed two weeks after the filing deadline, as
solely a motion to accept an untimely brief. An extension of
the filing period was factually impossible because the filing
period had already lapsed. In its order, the BIA noted its
stated policy that a “request for an extension of time to file a
brief must be received at the Board on or before [the] . . . due
date.” A motion to extend the filing period filed after the fil-
ing deadline can only result in the acceptance of an untimely
brief. Accordingly, we treat Zetino’s “Motion to Accept Late
Brief and Motion for Extension of Time” as a motion to
accept an untimely brief.
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i
[1] We can see no abuse of discretion in the BIA’s decision.2
The regulation at issue, 8 C.F.R. § 1003.3(c)(1), states, “In its
discretion, the Board may consider a brief that has been filed
out of time.” Id. (emphasis added). Thus, if a brief has been
filed out of time, the BIA may consider it in its discretion, but
it also may not consider it in its discretion. The BIA abuses
its discretion when it acts “arbitrarily, irrationally, or contrary
to the law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000)
(quoting Eide-Kahayon v. INS, 86 F.3d 147, 149 (9th Cir.
1996)); see also Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th
Cir. 2008) (“The BIA abuses its discretion when it makes an
error of law.”). We have held that “[t]he BIA abuses its dis-
cretion when it fails to comply with its own regulations.” Itur-
ribarria v. INS, 321 F.3d 889, 895 (9th Cir. 2003).
[2] Zetino filed his brief out of time. The applicable regu-
lation indicates that the BIA could have considered his brief
in its discretion. See 8 C.F.R. § 1003.3(c)(1). The BIA was
under no obligation to do so, however, and the BIA certainly
did not act arbitrarily, irrationally, or contrary to the law,
Singh, 213 F.3d at 1052, by exercising its discretion to deny
an untimely brief under a regulation indicating that it could—
or could not—accept the brief, 8 C.F.R. § 1003.3(c)(1). On
this record, there was no abuse of discretion.
ii
[3] We can see no due process violation in the BIA’s deci-
sion. “The Fifth Amendment guarantees due process in depor-
tation proceedings.” Campos-Sanchez v. INS, 164 F.3d 448,
450 (9th Cir. 1999). An alien “must receive a ‘full and fair
hearing,’ in order to meet the requirements of due process.”
2The government argues we lack jurisdiction to review this discretion-
ary decision. We find this argument unpersuasive in light of Kucana v.
Holder, 130 S. Ct. 827, 831 (2010).
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Id. A petition for review will only be granted on due process
grounds if “(1) the proceeding was so fundamentally unfair
that the alien was prevented from reasonably presenting his
case, and (2) the alien demonstrates prejudice, which means
that the outcome of the proceeding may have been affected by
the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d
614, 620-21 (9th Cir. 2006).
[4] First, Zetino’s proceedings were not so fundamentally
unfair that he was prevented from reasonably presenting his
case. An alien has been provided with due process when he
or she is given an opportunity “to be represented by counsel,
prepare an application for . . . relief, and . . . present testimony
and other evidence in support of the application.” Vargas-
Hernandez v. Gonzales, 497 F.3d 919, 926-27 (9th Cir. 2007).
We have held that a petitioner’s due process rights are vio-
lated if the BIA refuses to accept a late brief where the alien
followed all procedures but the BIA sent the briefing schedule
and transcript to an incorrect address. See Singh, 362 F.3d
1164, 1168-69 (9th Cir. 2004).
In Singh, the petitioner was unable to refute an IJ’s adverse
credibility finding in front of the BIA because he was never
given notice of the briefing schedule. Id. at 1168. Here, not
only was there no adverse credibility finding, but Zetino
received an initial briefing schedule as well as a supplemental
briefing schedule affording him a two week extension at his
Texas detention facility. His failure to timely file a brief by
the date of which he had advance notice was not due to the
actions of the BIA, but rather to his six year delay in securing
counsel.
While Zetino does not claim ineffective assistance of coun-
sel, we have held that a petitioner’s due process rights are not
violated even where the failure to file the brief on time is the
result of the petitioner’s counsel’s mistake. See Rojas-Garcia
v. Ashcroft, 339 F.3d 814, 822 (9th Cir. 2003). Here, Zetino
did not secure his counsel until five days after the expiration
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of the filing deadline. It was quite impossible for his attorney
to timely file his appellate brief. However, even if the errors
of his counsel had contributed to the delay, Zetino’s due pro-
cess claim would still fail.
[5] Unlike both Singh and Rojas-Garcia, Zetino cannot
point to anyone but himself to explain the untimeliness of his
brief. We cannot conclude that by missing the deadline he had
successfully extended he somehow deprived himself of due
process. To hold to the contrary would mean that when the
BIA enforced the previously extended filing deadline known
to the petitioner the proceeding became fundamentally unfair.
Such a holding would be contrary to existing due process
jurisprudence addressing filing deadlines. See, e.g., United
States v. Locke, 471 U.S. 84, 101 (1985) (holding that a filing
deadline under Federal Land Policy and Management Act car-
rying a penalty of an automatic forfeiture of a mining claim
did not violate due process).
[6] Nevertheless, we have held an alien’s due process
rights are violated if the BIA summarily dismisses an appeal
for failing to file a brief but the notice of appeal is sufficient
to put the BIA on notice of the relevant issues on appeal. See
Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753-54 (9th Cir.
2004). In his Notice of Appeal, Zetino made a coherent argu-
ment asking the BIA to reverse the IJ’s determination. He
cited specific evidence regarding his fear of his family’s mur-
derers as well as his fear of gangs. However, the BIA did not
summarily dismiss Zetino’s appeal when his brief was
untimely. Nor did the BIA summarily adopt the decision of
the IJ instead of addressing each of Zetino’s claims. In its
decision, the BIA properly articulated Zetino’s two fears: “He
fears that he could be killed by the eleven unidentified
masked gunmen who fatally shot his aunt, uncle, and at least
three cousins in 1993 and who remain at large. He also fears
members of gangs, who could attempt to recruit him.” The
BIA considered his arguments in turn, and affirmed the IJ’s
decision, holding that Zetino failed to establish a nexus
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between his fears and a protected ground. Thus, it did not pre-
vent Zetino from reasonably presenting his case.
[7] Second, even if rejection of Zetino’s brief could be
considered a violation of his rights, he cannot show prejudice
because the BIA considered all of the facts presented and
applied them to the law. Zetino’s articulation of his two fears
could not have changed to such a degree between his Notice
of Appeal and his brief that the BIA’s decision would have
changed. The BIA’s review, and its rejection of Zetino’s
untimely brief, did not run afoul of the Fifth Amendment’s
Due Process Clause.
B
[8] Zetino’s second argument on appeal is that the IJ vio-
lated his due process rights by failing to develop a factually
complete record or advise him of his right to counsel. This
argument is without merit.
The same standard applies to both this challenge and
Zetino’s due process challenge to the BIA’s rejection of his
untimely brief. See supra at Section III(A)(ii). Zetino was
entitled to a full and fair hearing. See Campos-Sanchez, 164
F.3d at 450. Zetino was not prevented from reasonably pre-
senting his case, nor were the proceedings before the IJ funda-
mentally unfair.
Zetino was advised of his right to counsel at his first
appearance before the IJ on May 31, 2001. The IJ stated,
[N]ow let me explain to you the rights that you will
have in these hearings. First and foremost of those
rights is the right to be represented. The Immigration
Service today is represented by an attorney. You
have the same right. You may be represented by an
attorney or a representative who’s been authorized
and qualified to represent people before the Immi-
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gration Court . . . . If you want to have an attorney
or representative represent you in these proceedings
it must be at no expense to the Government. That
means it is going to be your obligation to contact that
individual.
In the colloquy between Zetino and the IJ, the IJ specifically
advised him of his right to counsel and confirmed that he was
provided with a list of free legal services. The IJ stated, “I’m
going to show you a document. That document is called the
legal aid list, and you . . . should have gotten a copy of this
document when you got notice of today’s hearing. Did you
. . . receive a copy of this document that I’m showing you?”
Zetino answered, “Yes.” Zetino even sought a continuance to
obtain counsel. Zetino had almost six years between his first
appearance and his final merits hearing to obtain counsel.
At the final hearing, Zetino called witnesses but chose not
to question them. Zetino argues that he was not aware of his
right to question his witnesses. However, the IJ specifically
explained this right to him. When Zetino testified for himself,
and when he chose not to question his witnesses, the IJ suffi-
ciently developed the record, soliciting responses to several
questions. First he asked, “Why do you fear returning to the
country of El Salvador?” Then, “Any other reason why you
fear [sic]?” Finally, “Do you know why they are killed or
what the motivation was [sic]?”
The lawyer for the Department of Homeland Security also
developed the record, asking Zetino and his family members
numerous questions. The attorney began, “Why do you think
they will harm you in particular?” Then, “Have you ever had
any family members killed in El Salvador?” “[D]o you know
who killed them?” ”Do you know why this murder took place
or what the motive was?” “[W]ere you hurt at all while you
were in El Salvador?” Finally, “Do you think your son will be
harmed if he returned to El Salvador?”
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The IJ advised Zetino of his procedural rights and devel-
oped a thorough factual record. As a result, we find that the
proceeding was not so fundamentally unfair that Zetino was
prevented from reasonably presenting his case. His due pro-
cess rights were not violated.
C
Finally, Zetino argues that substantial evidence does not
support the BIA’s decision affirming the IJ’s denial of his
applications for asylum and withholding of removal. Under
the substantial evidence standard, the petition for review must
be denied if the BIA’s determination was “supported by rea-
sonable, substantial, and probative evidence on the record
considered as a whole.” Elias-Zacarias, 502 U.S. at 481.
Zetino bears the burden of proving that he is eligible for asy-
lum or withholding of removal. See 8 C.F.R. §§ 1208.13,
1208.16; Berroteran-Melendez v. INS, 955 F.2d 1251,
1255-56 (9th Cir. 1992).
To be eligible for asylum, Zetino must demonstrate that he
can qualify as a “refugee,” meaning he is unable or unwilling
to return to his country of origin “because of persecution or
a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42). To be eligible for
withholding of removal, Zetino must demonstrate that his
“life or freedom would be threatened in [his home] country
because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1231(b)(3).
The REAL ID Act of 2005 places an additional burden on
Zetino to demonstrate that one of the five protected grounds
will be at least one central reason for his persecution. See id.
§ 1158(b)(1)(B)(i).
Zetino testified that he was fearful of returning to El Salva-
dor because, in 1993, bandits attempting to steal his grandfa-
ther’s farm had murdered his family members. Zetino did not
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present evidence that the bandits targeted his family on
account of a protected ground such as their race, religion,
nationality, membership in a particular social group, or politi-
cal opinions. Rather, he testified that the farm was on fertile
land, and thus valuable. Zetino implied that the only motiva-
tion for the murders was the land itself. He testified that the
attackers “were insisting on the lands and [his] grandfather
did not want to get rid of the land.” Zetino also testified that
he was afraid of gang violence because he had tattoos that
gang members might mistake as a sign of membership in a
rival gang.
[9] An alien’s desire to be free from harassment by crimi-
nals motivated by theft or random violence by gang members
bears no nexus to a protected ground. See id. §§ 1231(b)(3),
1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th
Cir. 2004) (holding that random criminal acts bore no nexus
to a protected ground). Accordingly, the BIA properly ruled
that Zetino did not meet his burden of proving that the poten-
tial harm he would suffer in El Salvador was “on account of”
a protected ground such as “race, religion, nationality, mem-
bership in a particular social group, or political opinion.” Gor-
mley, 364 F.3d at 1176. Because the BIA’s determination is
supported by reasonable, substantial, and probative evidence
in the record considered as a whole, the petition for review is
denied.
IV
There was no abuse of discretion, Zetino’s due process
rights were not violated, and substantial evidence supports the
BIA’s decision that Zetino did not demonstrate a nexus
between the harm he fears and a protected ground. The peti-
tion for review is denied.
PETITION DENIED.
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