Oscar Ayala Platero v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 29 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OSCAR AYALA PLATERO, No. 21-70641 Petitioner, Agency No. A200-704-983 v. MEMORANDUM* MERRICK B. GARLAND, Attorney Gen- eral, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 27, 2022** San Francisco, California Before: GRABER and OWENS, Circuit Judges, and BAKER,*** International Trade Judge. Oscar Ayala Platero, a citizen of El Salvador, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal from the order of an * 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). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Immigration Judge (IJ) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We “review the BIA’s denials of asylum, withholding of removal, and CAT relief for ‘substantial evidence’” and will reverse only if the evidence compels a contrary conclusion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). “[W]hen, as here, the BIA’s ‘phrasing seems in part to suggest that it did conduct an independent review of the record,’ but the BIA’s analysis on the relevant issues is confined to a ‘simple statement of a conclusion,’ we ‘also look to the IJ’s . . . decision as a guide to what lay behind the BIA’s conclusion.’” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (quoting Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000)). 1. Ayala first argues that he established that his membership in a particular social group composed of “land owning Salvadorans” was or would be “at least one central reason” or “a reason” for the harm he suffered. The declarations that he cites do not support his argument because none addresses whether the gang targeted him because he was a landowner. At most, the declarations are ambiguous on this point, so they cannot compel a contrary conclusion. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005). Substantial evidence therefore supported the BIA’s con- clusion. 2. Ayala also contends that the BIA erred by failing to consider his claims 2 based on an alternate social group of “persons in El Salvador taking concrete steps to oppose gang membership and gang authority.” The BIA ruled that Ayala waived this issue because he did not challenge the IJ’s findings on appeal. The brief Ayala filed with the BIA raised only “status as a land-owning Salvadoran” as a particular social group. If a petitioner files a brief, “the BIA is entitled to look to the brief for an explication of the issues that petitioner is presenting to have reviewed. Petitioner will therefore be deemed to have exhausted only those issues …

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