FILED
NOT FOR PUBLICATION
JUL 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JHONY ALEXANDER LOPEZ- Nos. 11-73579
GARCIA, 13-72038
Petitioner, Agency No. A099-580-408
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 6, 2017
Seattle, Washington
Before: FERNANDEZ, CALLAHAN, and IKUTA, Circuit Judges.
Jhony Lopez-Garcia petitions for review of the Board of Immigration
Appeals’s (BIA) order, dated October 21, 2011, dismissing his appeal of the
Immigration Judge’s (IJ) denial of application for asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). Lopez-Garcia also
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
petitions for review of the BIA’s order, dated May 10, 2013, denying his motion to
reopen his case. We have jurisdiction under 8 U.S.C. § 1252, and we deny both
petitions for review.
Because Lopez-Garcia’s motion to reopen was filed well after the 90-day
deadline within which a motion to reopen must be filed, see 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2), the BIA did not abuse its discretion in
denying the motion as untimely, see Reyes v. Ashcroft, 358 F.3d 592, 596 (9th Cir.
2004). Although a petitioner may be eligible for equitable tolling of the deadline
due to ineffective assistance of counsel, Bonilla v. Lynch, 840 F.3d 575, 582 (9th
Cir. 2016), Lopez-Garcia failed to qualify for such relief because he did not
comply with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Among other
defects, Lopez-Garcia failed to file a complaint with the appropriate disciplinary
authorities. See Lozada, 19 I. & N. Dec. at 639. He is not excused from this
failure, because the purpose of this requirement was not fully served by other
means and because his counsel’s ineffectiveness is not plain on the face of the
record. See Reyes v. Ashcroft, 358 F.3d at 597. We reject Lopez-Garcia’s
argument that his counsel’s failure to pursue voluntary departure is plain, given
that the record does not establish that Lopez-Garcia had been a person of good
moral character for at least 5 years immediately preceding his application for
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voluntary departure, see 8 U.S.C. § 1229c(b)(1)(B), and some evidence indicates
that he did not meet that criterion, see id. § 1101(f)(6).
Alternatively, the BIA did not err in determining that Lopez-Garcia did not
qualify for equitable tolling of the 90-day deadline for filing a motion to reopen
based on ineffective assistance of counsel, because Lopez-Garcia failed to show
that any deficient representation of counsel was prejudicial. See Singh v. Holder,
658 F.3d 879, 885 (9th Cir. 2011). The BIA did not err in concluding that Lopez-
Garcia did not show eligibility for withholding of removal because he has not
demonstrated that it is more likely than not that he would be subject to persecution
on account of his membership in a particular social group or on account of his
political opinion. 8 U.S.C. § 1231(b)(3)(A). Lopez-Garcia has not shown that
former gang members are a cognizable particular social group, see Reyes v. Lynch,
842 F.3d 1125, 1138 (9th Cir. 2016), and Lopez-Garcia does not face harm
“because of” his familial relationships: the record establishes that Lopez-Garcia’s
family faces harm because of his gang associations rather than the inverse, see
Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017). Further, Lopez-
Garcia has not established that he is more likely than not to be persecuted by the
Salvadoran government or persons whom the Salvadoran government is unable or
unwilling to control. Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004).
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Rather, Lopez-Garcia’s second declaration indicates that on the one occasion in
which he sought assistance from the government, his assailant was arrested,
prosecuted, and imprisoned. Nor has Lopez-Garcia established plausible eligibility
for relief under the Convention Against Torture (CAT), because the record does
not support his claim that he would be subject to torture “with the consent or
acquiescence of a public official.” 8 C.F.R. § 1208.18(a)(1); see id.
§ 1208.18(a)(7).
In reaching these conclusions, the BIA did not err by not expressly
addressing Dr. Thomas Boerman’s expert opinion. See Feng Gui Lin v. Holder,
588 F.3d 981, 987 (9th Cir. 2009). Nor did the BIA erroneously assess Lopez-
Garcia’s credibility or evaluate the truth of his statements when it concluded that
Lopez-Garcia’s allegations were vague and unpersuasive. See Shouchen Yang v.
Lynch, 822 F.3d 504, 509 (9th Cir. 2016).
Because Lopez-Garcia failed to raise any arguments relating to the BIA’s
October 21, 2011 order in his opening brief, he has waived his challenge to this
order. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). But even if
such a challenge were not waived, we would hold the BIA did not err in denying
him relief because Lopez-Garcia did not file an application for asylum within one
year of entering the United States, see 8 U.S.C. § 1158(a)(2)(B), because he has
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not shown that it is more likely than not that he would be subject to persecution on
account of his membership in a particular social group or on account of his
political opinions, see id. § 1231(b)(3)(A), and because he has not shown that it is
more likely than not he would be tortured if removed to El Salvador, see 8 C.F.R.
§ 1208.16(c)(2).
PETITIONS DENIED.
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