NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 29 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR AYALA PLATERO, No. 21-70641

Petitioner, Agency No. A200-704-983

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney Gen- eral,

Respondent.

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

Submitted July 27, 2022** San Francisco, California

Before: GRABER and OWENS, Circuit Judges, and BAKER,*** International Trade Judge.

Oscar Ayala Platero, a citizen of El Salvador, petitions for review of a Board

of Immigration Appeals (BIA) decision dismissing his appeal from the order of an

* 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). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Immigration Judge (IJ) denying his application for asylum, withholding of removal,

and protection under the Convention Against Torture (CAT).

We “review the BIA’s denials of asylum, withholding of removal, and CAT

relief for ‘substantial evidence’” and will reverse only if the evidence compels a

contrary conclusion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).

“[W]hen, as here, the BIA’s ‘phrasing seems in part to suggest that it did conduct an

independent review of the record,’ but the BIA’s analysis on the relevant issues is

confined to a ‘simple statement of a conclusion,’ we ‘also look to the IJ’s . . . decision

as a guide to what lay behind the BIA’s conclusion.’” Shrestha v. Holder, 590 F.3d

1034, 1039 (9th Cir. 2010) (quoting Avetova-Elisseva v. INS, 213 F.3d 1192, 1197

(9th Cir. 2000)).

1. Ayala first argues that he established that his membership in a particular

social group composed of “land owning Salvadorans” was or would be “at least one

central reason” or “a reason” for the harm he suffered. The declarations that he cites

do not support his argument because none addresses whether the gang targeted him

because he was a landowner. At most, the declarations are ambiguous on this point,

so they cannot compel a contrary conclusion. See Nahrvani v. Gonzales, 399 F.3d

1148, 1154 (9th Cir. 2005). Substantial evidence therefore supported the BIA’s con-

clusion.

2. Ayala also contends that the BIA erred by failing to consider his claims

2 based on an alternate social group of “persons in El Salvador taking concrete steps

to oppose gang membership and gang authority.” The BIA ruled that Ayala waived

this issue because he did not challenge the IJ’s findings on appeal. The brief Ayala

filed with the BIA raised only “status as a land-owning Salvadoran” as a particular

social group. If a petitioner files a brief, “the BIA is entitled to look to the brief for

an explication of the issues that petitioner is presenting to have reviewed. Petitioner

will therefore be deemed to have exhausted only those issues he raised and argued

in his brief before the BIA.” Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009)

(en banc) (per curiam). The BIA was therefore entitled to conclude that Ayala

waived the “oppose gang membership” theory.

3. Ayala also asserts that the BIA erred by denying his appeal without a hear-

ing. On his notice of appeal, however, he checked the box saying he did not desire

oral argument before the BIA. The BIA did not err in not holding a hearing when

Ayala specifically declined to request one.

4. The BIA correctly found that Ayala did not meaningfully challenge the IJ’s

denial of CAT relief, so he waived that issue. Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004). Neither Ayala’s notice of appeal, nor his BIA appeal brief, addressed

the CAT anywhere.

5. Finally, Ayala argues that the BIA was obligated to remand per a settlement

agreement in Mendez Rojas v. Wolf, No. 2:16-cv-01024-RSM (W.D. Wash. July 28,

3 2020). The BIA declined to remand because the IJ’s findings—which the Board af-

firmed—would preclude Ayala from establishing eligibility for asylum, such that

even if the IJ had deemed his asylum application timely filed the outcome would not

change. The cited IJ findings, in turn, included a conclusion that Ayala failed to

demonstrate that the harm he suffered was on account of his membership in a par-

ticular social group. As discussed above, the BIA’s conclusion on the “particular

social group” issue was supported by substantial evidence. That, in turn, also means

that the BIA’s ruling that the result would not change on remand was correct. See

Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (explaining that applicants

for asylum or withholding of removal must demonstrate existence of particular so-

cial group, personal membership therein, and persecution on account of member-

ship).

Ayala relies on Velasquez-Martinez v. Garland, 852 F. App’x 240 (9th Cir.

2021) (mem.), to argue that the BIA was obligated to remand. Velasquez-Martinez

is not precedential and is also distinguishable. There, the BIA failed to address the

petitioner’s assertion of class membership and failed to address some evidence in

the record. Id. at 241–43. Here, in contrast, the BIA did address the issue of Mendez

Rojas class membership and considered the evidence.

PETITION DENIED.

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