United States v. 2020-12-08 | 19-71302 | ARMANDO ESCAMILLA-SERRANO V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO RAFAEL ESCAMILLA-
SERRANO; BRAYAN RAFAEL
ESCAMILLA-DURAN,

Petitioners,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 19-71302

Agency Nos. A208-170-228
A208-170-229

MEMORANDUM
*

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

Submitted December 2, 2020
**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Armando Rafael Escamilla-Serrano and Brayan Rafael Escamilla-Duran,
natives and citizens of El Salvador, petition for review of the Board of Immigration
Appeals’ order dismissing their appeal from an immigration judge’s decision
denying their applications for asylum, withholding of removal, and relief under the

*
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).
FILED

DEC 8 2020

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

2 19-71302
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8
U.S.C. § 1252. We review factual findings for substantial evidence. Garcia-
Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and
dismiss in part the petition for review.
As to Escamilla-Duran, substantial evidence supports the finding that he
failed to establish that the harm he experienced or fears was or would be on
account of his family membership, membership in the group “young El Salvadoran
men who refuse gang recruitment based on political opinion,” anti-gang political
opinion, or religion. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (an
applicant “must provide some evidence of [motive], direct or circumstantial”); see
also Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in
a particular social group is established, an applicant must still show that
“persecution was or will be on account of his membership in such group”); Santos-
Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (resistance to gang
recruitment, without more, does not establish political opinion) abrogated on other
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013).
As to Escamilla-Serrano, substantial evidence supports the determination
that he did not establish a well-founded fear of future persecution. See Nagoulko v.
INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution “too
speculative”).

3 19-71302
We lack jurisdiction to consider the protected grounds petitioners assert for
the first time in their opening brief. See Barron v. Ashcroft, 358 F.3d 674, 677-78
(9th Cir. 2004) (court lacks jurisdiction to review claims not presented below).
Thus, petitioners’ asylum and withholding of removal claims fail.
Substantial evidence also supports the denial of CAT relief because
petitioners failed to show it is more likely than not they would be tortured by or
with the consent or acquiescence of the government if returned to El Salvador. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
As stated in the court’s July 29, 2019 order, the temporary stay of removal
remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.