                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       NOV 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

BALTAZAR AVALOS,                                No. 12-74094

                Petitioner,                     Agency No. A094-179-097

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                          Submitted November 15, 2017**

Before:      CANBY, TROTT, and GRABER, Circuit Judges.

      Baltazar Avalos, a native and citizen of El Salvador, petitions for review of

the Board of Immigration Appeals’ orders dismissing his appeal from an

immigration judge’s (“IJ”) decisions denying his applications for asylum,

withholding of removal, protection under the Convention Against Torture



      *
             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).
(“CAT”), Temporary Protected Status (“TPS”), cancellation of removal, and

special rule cancellation under the Nicaraguan Adjustment and Central American

Relief Act (“NACARA”). Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for substantial evidence the agency’s findings of fact, and review de novo

constitutional claims and questions of law. Khan v. Holder, 584 F.3d 773, 776 (9th

Cir. 2009). We deny in part, dismiss in part, and grant in part the petition for

review, and we remand.

        Substantial evidence supports the agency’s determination that Avalos failed

to establish that the harm he fears in El Salvador is on account of a protected

ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (petitioner’s

“desire to be free from . . . random violence by gang members bears no nexus to a

protected ground.”). Thus, Avalos’ asylum and withholding of removal claims

fail.

        Substantial evidence supports the agency’s CAT denial because Avalos

failed to establish that it is more likely than not that he would be tortured by or

with the consent or acquiescence of the government if returned to El Salvador. See

Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

        We lack jurisdiction to consider Avalos’ contentions as to the agency’s

discretionary determination pertaining to his cancellation of removal claim, see 8

U.S.C. § 1252(a)(2)(B)(i); see also Vilchez v. Holder, 682 F.3d 1195, 1201 (9th


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Cir. 2012), and Avalos does not raise a colorable constitutional claim or question

of law which this court may review, see Martinez-Rosas v. Gonzales, 424 F.3d

926, 930 (9th Cir. 2005) (court retains jurisdiction to review due process

challenges but must allege at least a colorable constitutional violation). We also

lack jurisdiction to review the agency’s denial of Avalos’ NACARA special rule

cancellation claim. See Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010) (the

IIRIRA “expressly precludes” review of eligibility decisions under NACARA).

      We reject Avalos’ contention that the agency committed reversible error by

addressing the government’s motion for reconsideration, see Kumar v. Gonzales,

439 F.3d 520, 523-24 (9th Cir. 2006) (noting that violation of agency regulations

reviewed for harmless error), and his contention that the IJ violated his due process

rights by exhibiting bias toward Avalos, see Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000) (requiring error and prejudice to prevail on a due process claim).

      Finally, as to TPS, it is unclear whether the agency found that Avalos was in

the military, and even if he was, mere membership is insufficient to satisfy the

persecutor bar. See 8 U.S.C. §§ 1158(b)(2)(A)(i), 1254a(c)(2)(B)(ii); see also

Kumar v. Holder, 728 F.3d 993, 998 (9th Cir. 2013) (explaining that applicability

of the persecutor bar “requires a particularized evaluation of both personal

involvement and purposeful assistance”) (internal quotation marks and citation

omitted); Miranda Alvarado v. Gonzales, 449 F.3d 915, 927-28 (9th Cir. 2006)


                                          3                                     12-74094
(explaining that mere membership in an organization is insufficient to satisfy the

persecutor exception) (internal quotation marks and citation omitted). Thus, we

grant the petition for review and remand Avalos’ TPS claim to the agency for

further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S.

12, 16-18 (2002) (per curiam).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part;

GRANTED in part; REMANDED.




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