NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CARLOS ERNESTO HENRIQUEZ, AKA Nos. 15-71514 Carlos Ernesto Enriquez, 16-71400 17-71187 Petitioner, Agency No. A077-079-920 v. JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 13, 2018** Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges. Carlos Ernesto Henriquez, 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 decision denying his application for relief under the * 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). Convention Against Torture (“CAT”) (No. 15-71514), and the BIA’s orders denying his two motions to reopen removal proceedings (Nos. 16-71400 and 17- 71187). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014), and for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petitions for review. As to petition No. 15-71514, substantial evidence supports the agency’s denial of Henriquez’s CAT claim because he failed to establish it is more likely than not that he would be tortured by or with the consent or acquiescence of the government of El Salvador. See Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not establish the necessary “state action” for CAT relief); Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (petitioners’ generalized evidence of violence and crime was not particular to petitioners and was insufficient to meet the CAT standard). As to petition No. 16-71400, in his opening brief, Henriquez fails to challenge the denial of his first motion to reopen. See Corro-Barragan v. Holder, 2 15-71514 718 F.3d 1174, 1177 n. 5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in waiver). Finally, as to petition No. 17-71187, the BIA did not abuse its discretion by denying Henriquez’s second motion to reopen as untimely and number-barred where he failed to establish circumstances warranting equitable tolling. See 8 C.F.R. § 1003.2(c)(2); Iturribarria, 321 F.3d at 897 (holding that equitable tolling is available “when a petitioner is prevented from filing [a motion to reopen] because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error”). PETITIONS FOR REVIEW DENIED. 3 15-71514 15-71514 Court of Appeals for the Ninth Circuit ca9 9th Cir. Carlos Henriquez v. Jefferson Sessions 26 March 2018 Agency Unpublished dc2290a809bcf4ce737e76d59fa34abc4bdddd6a
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