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United States Court of Appeals, Ninth Circuit.

William Ernesto ARCIA-RUIZ, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 16-70946

Decided: October 29, 2020

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges. William Ernesto Arcia-Ruiz, Pro Se Liza Murcia, Attorney, Anthony Cardozo Payne, Senior Litigation Counsel, Kathleen Kelly Volkert, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent


William Ernesto Arcia-Ruiz, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge's 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 for substantial evidence the agency's factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.

The record does not compel the conclusion that Arcia-Ruiz established changed or extraordinary circumstances to excuse his untimely asylum application. See 8 C.F.R. § 1208.4(a)(4)-(5). We do not consider Arcia-Ruiz's contentions as to changed country conditions in El Salvador because the BIA did not reach that issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA), and Arcia-Ruiz does not contend the BIA erred in finding that claim was not properly before it, see Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in waiver).

Substantial evidence supports the agency's determination that Arcia-Ruiz failed to demonstrate that the harm he experienced or fears was or would be on account of his family membership. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (an applicant “must provide some evidence of [motive], direct or circumstantial”); see also Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (a petitioner who establishes membership in particular social group must also “establish that any persecution was or will be on account of his membership in such group”); 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, Arcia-Ruiz's withholding of removal claim fails.

Substantial evidence also supports the agency's denial of CAT relief because Arcia-Ruiz failed to show it is more likely than not he 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 lack jurisdiction to consider Arcia-Ruiz's contentions as to prosecutorial discretion. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency); see also Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).

As stated in the court's June 28, 2016 order, the temporary stay of removal remains in place until issuance of the mandate.


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