                                                                             FILED
                            NOT FOR PUBLICATION
                                                                                 NOV 27 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SALVADOR TRUJILLOS SILVA,                         Nos. 14-71709
                                                       14-73399
              Petitioner,
                                                  Agency No. A074-797-189
 v.

JEFFERSON B. SESSIONS III, Attorney               MEMORANDUM*
General,

              Respondent.


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

                      Argued and Submitted November 7, 2017
                               Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and PAYNE,** District Judge.

      1. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the Board

of Immigration Appeals’ (BIA) decisions because the immigration judge (IJ)

denied relief to Salvador Silva on the merits, rather than on the basis of his


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Robert E. Payne, United States District Judge for the
Eastern District of Virginia, sitting by designation.
                                                                          Page 2 of 4
conviction for a crime involving moral turpitude. See Agonafer v. Sessions, 859

F.3d 1198, 1202 (9th Cir. 2017).

      2. The IJ and BIA correctly determined that Silva is statutorily ineligible for

an adjustment of status under 8 U.S.C. § 1255(a) because he is removable under

§ 1182(a)(6)(A)(i). The parties do not dispute that the “clearly and beyond doubt”

standard in § 1229a(c)(2) and 8 C.F.R. § 1240.8(c) applies in proceedings

concerning an alien’s removability. Under our circuit precedent, the same

standard, rather than the preponderance of the evidence standard in 8 C.F.R.

§ 1240.8(d), also applies in adjustment of status proceedings. Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1074 & n.1 (9th Cir. 2013); Valadez-Munoz v. Holder, 623

F.3d 1304, 1308 (9th Cir. 2010). Because Silva did not rebut the charge of

removability by proving clearly and beyond doubt that he was admitted to the

United States, he necessarily failed to prove that he was eligible for an adjustment

of status under § 1255(a).

      3. Substantial evidence supports the IJ’s and BIA’s determination that

Silva’s claims for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT) fail. Silva filed his asylum request at least 12 years late.

See 8 U.S.C. § 1158(a)(2)(B). The changed circumstances that he alleged do not

excuse the late filing because they show only a general increase in violence in
                                                                           Page 3 of 4
Mexico, not a particular link between the violence and him. See Ramirez-Munoz v.

Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016). Silva’s asylum claim fails on the

merits as well because the group of “imputed wealthy Americans” that Silva claims

to be part of is not a “particular social group” for asylum purposes. See id.

Because “imputed wealthy Americans” is not a “particular social group,” Silva’s

withholding claim also fails. See 8 C.F.R. § 1208.16(b)(2). Silva also did not

show that it was more likely than not he would be tortured in Mexico, so his CAT

claim fails too. See Ramirez-Munoz, 816 F.3d at 1230.

      4. The BIA abused its discretion by denying Silva’s motion to reopen. Silva

moved to reopen so that he could pursue an I-601A provisional waiver of

inadmissibility pursuant to 8 C.F.R. § 212.7. With respect to Silva, the waiver is

available only if the agency has administratively closed his removal proceedings.

§ 212.7(e)(4)(v). Yet the BIA denied the motion without mentioning the I-601A

waiver issue. Because the BIA did not provide “specific and cogent reasons” for

its denial of the motion to reopen, it abused its discretion. Movsisian v. Ashcroft,

395 F.3d 1095, 1098 (9th Cir. 2005). Silva’s failure to attach the I-601A

application to his motion did not bar the BIA’s consideration of his motion because

Silva sought only administrative closure from the BIA.
                                                       Page 4 of 4
     PETITION DENIED in No. 14-71709; PETITION GRANTED in No.

14-73399.
