Marvin Santos-Martinez v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION OCT 13 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN SANTOS-MARTINEZ, No. 12-71715

Petitioner, Agency No. A095-691-660

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

Respondent.

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

Submitted September 3, 2015**
Pasadena, California

Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,*** Chief
District Judge.

Marvin Santos-Martinez, a native and citizen of El Salvador, petitions for

review of an adverse decision of the Board of Immigration Appeals ("BIA"). We

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.
review de novo the BIA’s legal determinations and for substantial evidence the

BIA’s factual determinations. Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th

Cir. 2015). We dismiss the petition in part and deny it in part.

1. The BIA properly ruled that Petitioner failed to demonstrate 10 years of

continuous physical presence. At the very latest, Petitioner stopped accruing

physical presence when he appeared before an immigration judge ("IJ") on January

17, 2006. See 8 U.S.C. § 1229b(d)(1)(A) (providing that the accrual of physical

presence "shall be deemed to end . . . when the alien is served a notice to appear" in

removal proceedings); Garcia-Ramirez v. Gonzales, 423 F.3d 935, 937 n.3 (9th

Cir. 2005) (per curiam) (stating that a notice specifying the time and location of

removal proceedings, which followed the initial notice to appear in those

proceedings, stopped the accrual of physical presence); Khan v. Ashcroft, 374 F.3d

825, 828–29 (9th Cir. 2004) (holding that appearance at the scheduled hearing

demonstrates actual notice of the hearing). It is undisputed that Petitioner had been

2
in the United States for less than two years when he appeared at that initial removal

hearing.1 Thus, he is statutorily ineligible for cancellation of removal.

2. Because Petitioner submitted to the IJ a number of documents to establish

his stepfather’s continuous physical presence in the United States, we have

jurisdiction to consider Petitioner’s argument that he could meet the physical

presence requirement for cancellation of removal by imputing his stepfather’s

presence to himself. But the Supreme Court has foreclosed that argument. See

Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2018 (2012) (deferring to the BIA’s

determination that an applicant for cancellation of removal "must meet the

statutory conditions [of 8 U.S.C. § 1229b(a)] independently, without relying on a

parent’s history").

3. Substantial evidence supports the BIA’s holding that Petitioner’s asylum

application was time-barred because he failed to establish either that changed

country conditions in El Salvador materially affected his eligibility for asylum or

that the service of the notice to appear in removal proceedings was an

1
Moreover, to the extent that Petitioner challenges the sufficiency of the
notice to appear, he was sent additional hearing notices shortly afterward that
indicated the date and time of his initial hearing. See Popa v. Holder, 571 F.3d
890, 895–96 (9th Cir. 2009) ("[W]e hold a Notice to Appear that fails to include
the date and time of an alien’s deportation hearing, but that states that a date and
time will be set later, is not defective so long as a notice of the hearing is in fact
later sent to the alien.").
3
"extraordinary circumstance[]" that justified his failure to apply within one year of

his arrival in the United States. 8 U.S.C. § 1158(a)(2)(D).

4. Substantial evidence also supports the BIA’s decision that Petitioner

failed to establish that he was persecuted or had a well-founded fear of persecution

on account of a protected ground. Fear of "random violence by gang members

bears no nexus to a protected ground," Zetino v. Holder, 622 F.3d 1007, 1016 (9th

Cir. 2010), and those "generally opposed to gangs or resistant to gang recruitment"

do not constitute a social group, Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093

(9th Cir. 2013) (en banc). And because Petitioner has failed to demonstrate that he

is eligible for asylum, he necessarily has failed to meet the more stringent standard

for withholding of removal. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.

2000).

5. Issues pertaining to Petitioner’s humanitarian asylum and Convention

Against Torture claims are unexhausted, so we lack jurisdiction to consider them.

8 U.S.C. § 1252(d)(1).

6. We have considered Petitioner’s other arguments and find them

unpersuasive.

Petition DISMISSED in part and DENIED in part.