NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR MANUEL ORTIZ, No. 16-70731
Petitioner, Agency No. A087-760-780
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 10, 2020
San Francisco, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and LASNIK,** District
Judge.
Victor Manuel Ortiz, a native and citizen of El Salvador, seeks relief from
the Board of Immigration Appeals’ denial of immigration relief. Ortiz alleges that
his counsel was ineffective and that he fears persecution if returned to El Salvador
because of his membership in a particular social group. Although ably represented
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
by pro bono counsel, who persuasively assert that Ortiz’s prior counsel was
ineffective, Ortiz has not shown any nexus between his alleged incidents of
persecution and his proposed particular social group. Accordingly, his petition for
relief is denied.1
1. After the Immigration Judge (IJ) denied Ortiz relief, he filed an appeal to
the Board of Immigration Appeals (BIA). He then filed a motion to remand based
on his prior attorney’s failure to prepare him for his hearing before the IJ. The BIA
denied the motion, finding no prejudice, and noting that Ortiz “testified his asylum
application was true and correct and he had nothing to add or take away before
providing extensive, sworn testimony regarding the specifics of his claim.”
We review the BIA’s denial of a motion to remand for abuse of discretion.
Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008). To prevail on a
claim of ineffective assistance of counsel, a petitioner must first demonstrate that
counsel failed to perform with sufficient competence, and second, that he was
prejudiced by counsel’s performance. Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 858 (9th Cir. 2004).
Although Ortiz’s motion to remand made a strong argument that his former
attorney performed deficiently, the motion failed to allege any nexus between the
1
Because the parties are familiar with the facts of this application, we do not
discuss them at length here.
2
proposed particular social group (residing in a particular neighborhood in San
Salvador) and the incidents of persecution that Ortiz alleged. Accordingly, Ortiz
has not shown that the BIA’s denial of his motion to remand was an abuse of
discretion.
2. The BIA denied Ortiz’s asylum claim, finding that the IJ’s adverse
credibility finding was not clearly erroneous, that Ortiz “did not distinguish his
claim from analogous claims involving a fear of extortion, general lawlessness, and
crime which do not implicate a protected ground under the Act,” and “did not meet
his burden of proving a nexus between the harm he experienced and a particular
social group.”
We deny a petition for review “if the BIA’s determination is ‘supported by
reasonable, substantial, and probative evidence on the record considered as a
whole,’” and a petition “may be granted only if the evidence presented ‘was such
that a reasonable factfinder would have to conclude that the requisite fear of
persecution existed.’” Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010)
(internal citations omitted).
Ortiz sought relief based on his fear of persecution based on belonging to a
particular social group: people who lived in a colony or neighborhood in San
Salvador known as Colonia Matsano. Ortiz testified to two incidents of being
threatened by gang members. He stated that the first incident was an attempted
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robbery that was aborted when his brother and some of his classmates arrived. The
second incident arose when gang members sought information about the murder of
one of Ortiz’s friends. Nothing in Ortiz’s testimony suggests any nexus between
the incidents and where Ortiz lived. We have held that a petitioner’s “desire to
be free from harassment by criminals motivated by theft or random violence by
gang members bears no nexus to a protected ground.” Zetino, 622 F.3d at 1016.
Even if Ortiz’s lack of credibility was due to his counsel’s ineffectiveness, because
the testimony he gave, taken as true, contains no evidence of a nexus between the
incidents he related and his proposed social group, Ortiz has not shown that the
record compels a grant of immigration relief.2
The petition for review is DENIED.
2
Because we hold that the BIA reasonably found there was no nexus to
Ortiz’s proposed social group, we do not consider whether that group constitutes a
cognizable social group pursuant to M-E-V-G-, 26 I & N Dec. 227, 237 (BIA
2014), and Reyes v. Lynch, 842 F.3d 1125, 1135 (9th Cir. 2016).
4