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United States Court of Appeals, Ninth Circuit.

Carmen AYALA-CALDERON; et al., Petitioners, v. William P. BARR, Attorney General, Respondent.

No. 15-72781

Decided: October 29, 2020

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges. Elsa Ines Martinez, Esquire, Attorney, Law Offices of Elsa Martinez, PLC, Los Angeles, CA, for Petitioners Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Carmel Aileen Morgan, Esquire, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent


Carmen Ayala-Calderon and her minor son, natives and citizens of El Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge's (“IJ”) decision denying their application 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.

Substantial evidence supports the agency's determination that petitioners failed to establish the harm they experienced or fear in El Salvador was or would be on account of a protected ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of [her] 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”). Petitioners’ contention that the BIA did not address their family social group claim is not supported by the record. Thus, petitioners’ asylum and withholding of removal claims fail.

Substantial evidence also supports the agency's denial of CAT relief because Ayala-Calderon failed to show it is more likely than not she would be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).

The record does not support petitioners’ contentions that the agency failed to consider evidence or otherwise erred in its analysis of their claims. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency need not write an exegesis on every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the presumption that the BIA reviewed the record).

We lack jurisdiction to consider petitioners’ contentions as to the IJ's evaluation and analysis of their claims that they did not raise to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to consider claims not raised to the BIA).

On February 23, 2016, the court granted a stay of removal. The stay of removal remains in place until issuance of the mandate.


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