United States v. 2020-04-10 | 19-71093 | BENITO DE PAZ AVALOS V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENITO ANGEL DE PAZ AVALOS,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 19-71093

Agency No. A200-975-001

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 7, 2020
**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

Benito Angel De Paz Avalos, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his applications for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

*
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).
FILED

APR 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except
to the extent that deference is owed to the BIA’s interpretation of the governing
statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
We review for substantial evidence the agency’s factual findings. Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We review de novo due process
claims in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir.
2014). We deny in part and dismiss in part the petition for review.
In his opening brief, De Paz Avalos does not challenge the agency’s finding
that he did not show extraordinary or changed circumstances to excuse his failure
to apply for asylum within the 1-year filing deadline. See Lopez-Vasquez v.
Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and
argued in a party’s opening brief are waived). De Paz Avalos also does not
challenge the agency’s denial of his CAT claim. See id. Thus, we deny the
petition for review as to asylum and CAT relief.
The BIA did not err in finding that De Paz Avalos did not establish
membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,
1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social
group, “[t]he applicant must ‘establish that the group is (1) composed of members
who share a common immutable characteristic, (2) defined with particularity, and
(3) socially distinct within the society in question’” (quoting Matter of M-E-V-G-,

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26 I. & N. Dec. 227, 237 (BIA 2014))); see also Santos-Lemus v. Mukasey, 542
F.3d 738, 744-46 (9th Cir. 2008) (holding young men who resist gang violence in
El Salvador is not a particular social group), abrogated in part by Henriquez-Rivas
v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013)).
In addition, substantial evidence supports the agency’s determination that De
Paz Avalos failed to establish that the harm he experienced or fears in El Salvador
was or would be on account of a protected ground. See 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”). Thus, De Paz Avalos’s withholding of removal claim
fails.
The BIA did not err in denying De Paz Avalos’s due process claim based on
ineffective assistance of counsel where De Paz Avalos failed to establish prejudice.
See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an
ineffective assistance of counsel claim a petitioner must demonstrate prejudice).
Nor did the BIA err in denying De Paz Avalos’s due process claims that the IJ did
not consider the background evidence in the record and that the IJ deprived him of
the opportunity to present evidence at his hearing. See Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).
We lack jurisdiction to consider De Paz Avalos’s contentions as to his

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untimely asylum application and proposed social groups that were not raised to the
agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks
jurisdiction to review claims not presented to the agency).
De Paz Avalos’s motion for a stay of removal (Docket Entry No. 1) is
denied as moot.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.