Benjamin Ortega v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
AUG 20 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENJAMIN D. ORTEGA, No. 12-72633

Petitioner, Agency No. A073-420-819

v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted August 18, 2015**
San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

Benjamin Ortega (“Ortega”), a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’s (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) denial of his application for asylum. We have jurisdiction

pursuant to 8 U.S.C. § 1252(a), and we deny the petition for review.

*
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).
 Ortega contends that he suffered past persecution in the form of physical abuse

by his father when he was a child and has a well-founded fear of future persecution

on this basis were he to be removed to El Salvador. “To establish eligibility for

asylum, an applicant must demonstrate his or her status as a refugee.” Melkonian v.

Ashcroft, 320 F.3d 1061, 1064 (9th Cir. 2003) (citing Sangha v. INS, 103 F.3d 1482,

1487 (9th Cir.1997)). On a claim of past persecution committed by a private

individual, the applicant bears the burden of showing that the government is unable

or unwilling to control the persecutor. See Afriyie v. Holder, 613 F.3d 924, 931 (9th

Cir. 2010).

Reviewing the Board’s conclusion that Ortega failed to establish past

persecution for substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1060 (9th

Cir. 2009), we determine that the Board was not compelled to find that Ortega is

entitled to asylum. See Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007). In

particular, Ortega did not demonstrate that El Salvador’s government was unwilling

or unable to control Ortega’s father. Ortega did not provide evidence that child abuse

was widespread and not controlled by the government, that others have made reports

of similar incidents to no avail, or that El Salvador’s laws and customs deprive

children of governmental protection. See Rahimzadeh v. Holder, 613 F.3d 916,

922–23 (9th Cir. 2010). His bare two-sentence pronouncement that “[c]hild abuse has

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been and continues to be a ‘serious and widespread problem’” and “[t]he authorities’

response to the child abuse epidemic has been ‘ineffective and unsupportive’” does

not suffice to carry his burden.1

As the Board correctly determined that Ortega did not establish that he suffered

past persecution, the burden of proof it applied to his claim was proper. That Ortega

is now an adult male who concedes that he no longer fears his elderly father and has

similarly-situated siblings living safely in El Salvador demonstrates that the Board’s

decision was supported by substantial evidence. Lastly, as Ortega did not establish

either past persecution or the possibility of suffering serious harm upon returning to

El Salvador, the Board did not abuse its discretion in affirming the IJ’s denial of

Ortega’s claim for humanitarian asylum. See Hanna v. Keisler, 506 F.3d 933, 939

(9th Cir. 2007) (citing 8 C.F.R. § 1208.13(b)(1)(iii)).

PETITION DENIED.

1
Ortega’s contention that the Board engaged in impermissible fact finding is
unavailing. Board precedent specifically identifies determinations of “whether the
facts established by a particular alien amount to past persecution” as mixed questions
of law and fact that the Board may review de novo. Matter of V-K-, 24 I. & N. Dec.
500, 501–02 (BIA 2008) (internal quotation marks and citation omitted), overruled
on other grounds by Matter of Z-Z-O-, 26 I. & N. Dec. 586 (BIA 2015). Furthermore,
even if the Board engaged in impermissible fact finding, remand would be futile, see
Najmabadi v. Holder, 597 F.3d 983, 991 (9th Cir. 2010), as Ortega cannot
demonstrate a well-founded fear of future persecution, regardless of where the burden
rests. Evidence in the form of changed country conditions, changed circumstances,
and the possibility of relocation, unambiguously undermines Ortega’s asylum
application and leaves no doubt as to the outcome.
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