GALDAMEZ SERPAS v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-28No. No. 20-70982

Summary · law.co

Holding. The petition for review is denied. The court affirmed the Board of Immigration Appeals' dismissal of Galdamez-Serpas's appeal and the immigration judge's denials of asylum, withholding of removal, and Convention Against Torture relief.

Edwin Samuel Galdamez-Serpas, a citizen of El Salvador, sought asylum, withholding of removal, and relief under the Convention Against Torture. The immigration judge denied all three requests, and the Board of Immigration Appeals dismissed his appeal. Galdamez-Serpas then petitioned for court review of those decisions.

The court found that Galdamez-Serpas did not establish valid grounds for any of his three claims. Regarding asylum, he failed to show either that he filed his application within the required timeframe or that he had suffered persecution on account of a protected ground—the threats and harms he described did not rise to the level of persecution and were not connected to protected characteristics. Similarly, his withholding of removal claim failed because he did not demonstrate a clear probability of future persecution based on political opinion or another protected ground. Finally, substantial evidence supported the denial of Convention Against Torture relief because Galdamez-Serpas did not prove it was more likely than not that he would be tortured by the government or with its consent if returned to El Salvador.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether untimely asylum application was excused by changed or extraordinary circumstances
Whether applicant established persecution or harm rising to that level
Whether harm was on account of membership in a protected social group
Whether applicant demonstrated clear probability of future persecution on account of political opinion
Whether applicant proved likely torture by government if returned to El Salvador

Procedural posture

The court reviewed a Board of Immigration Appeals decision that dismissed an appeal from an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Edwin Samuel Galdamez-Serpas, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judges (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review.

The record does not compel the conclusion that Galdamez-Serpas established changed or extraordinary circumstances to excuse his untimely asylum application. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)-(5). Thus, Galdamez-Serpass asylum claim fails.

Substantial evidence supports the agencys determination that Galdamez-Serpas failed to establish he suffered harm that rises to the level of persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (“Threats standing alone ․ constitute past persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’ ” (citation omitted)). Substantial evidence also supports the agencys determination that Galdamez-Serpas failed to establish that the harm he fears would be on account of a protected ground, including membership in his proposed employment-based social groups. 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 his membership in such group”); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (a petitioners “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”).

In his opening brief, Galdamez-Serpas does not challenge the agencys determination that he failed to establish a clear probability of future persecution on account of an actual or imputed political opinion. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a partys opening brief are waived).

Thus, Galdamez-Serpass withholding of removal claim fails.

In light of this disposition, we do not reach Galdamez-Serpass remaining contentions as to withholding of removal. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach).

Substantial evidence supports the agencys denial of CAT relief because Galdamez-Serpas failed to show it is more likely than not he would 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 reject as unsupported by the record Galmadez-Serpass contention that the IJ erred in its analysis of his claim.

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.