                                                                            FILED
                            NOT FOR PUBLICATION
                                                                              JUL 13 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JHONY ALEXANDER LOPEZ-                           Nos. 11-73579
GARCIA,                                               13-72038

              Petitioner,                        Agency No. A099-580-408

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

              Respondent.


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

                        Argued and Submitted June 6, 2017
                               Seattle, Washington

Before: FERNANDEZ, CALLAHAN, and IKUTA, Circuit Judges.

      Jhony Lopez-Garcia petitions for review of the Board of Immigration

Appeals’s (BIA) order, dated October 21, 2011, dismissing his appeal of the

Immigration Judge’s (IJ) denial of application for asylum, withholding of removal,

and relief under the Convention Against Torture (CAT). Lopez-Garcia also


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
petitions for review of the BIA’s order, dated May 10, 2013, denying his motion to

reopen his case. We have jurisdiction under 8 U.S.C. § 1252, and we deny both

petitions for review.

      Because Lopez-Garcia’s motion to reopen was filed well after the 90-day

deadline within which a motion to reopen must be filed, see 8 U.S.C.

§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2), the BIA did not abuse its discretion in

denying the motion as untimely, see Reyes v. Ashcroft, 358 F.3d 592, 596 (9th Cir.

2004). Although a petitioner may be eligible for equitable tolling of the deadline

due to ineffective assistance of counsel, Bonilla v. Lynch, 840 F.3d 575, 582 (9th

Cir. 2016), Lopez-Garcia failed to qualify for such relief because he did not

comply with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Among other

defects, Lopez-Garcia failed to file a complaint with the appropriate disciplinary

authorities. See Lozada, 19 I. & N. Dec. at 639. He is not excused from this

failure, because the purpose of this requirement was not fully served by other

means and because his counsel’s ineffectiveness is not plain on the face of the

record. See Reyes v. Ashcroft, 358 F.3d at 597. We reject Lopez-Garcia’s

argument that his counsel’s failure to pursue voluntary departure is plain, given

that the record does not establish that Lopez-Garcia had been a person of good

moral character for at least 5 years immediately preceding his application for


                                          2
voluntary departure, see 8 U.S.C. § 1229c(b)(1)(B), and some evidence indicates

that he did not meet that criterion, see id. § 1101(f)(6).

      Alternatively, the BIA did not err in determining that Lopez-Garcia did not

qualify for equitable tolling of the 90-day deadline for filing a motion to reopen

based on ineffective assistance of counsel, because Lopez-Garcia failed to show

that any deficient representation of counsel was prejudicial. See Singh v. Holder,

658 F.3d 879, 885 (9th Cir. 2011). The BIA did not err in concluding that Lopez-

Garcia did not show eligibility for withholding of removal because he has not

demonstrated that it is more likely than not that he would be subject to persecution

on account of his membership in a particular social group or on account of his

political opinion. 8 U.S.C. § 1231(b)(3)(A). Lopez-Garcia has not shown that

former gang members are a cognizable particular social group, see Reyes v. Lynch,

842 F.3d 1125, 1138 (9th Cir. 2016), and Lopez-Garcia does not face harm

“because of” his familial relationships: the record establishes that Lopez-Garcia’s

family faces harm because of his gang associations rather than the inverse, see

Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017). Further, Lopez-

Garcia has not established that he is more likely than not to be persecuted by the

Salvadoran government or persons whom the Salvadoran government is unable or

unwilling to control. Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004).


                                            3
Rather, Lopez-Garcia’s second declaration indicates that on the one occasion in

which he sought assistance from the government, his assailant was arrested,

prosecuted, and imprisoned. Nor has Lopez-Garcia established plausible eligibility

for relief under the Convention Against Torture (CAT), because the record does

not support his claim that he would be subject to torture “with the consent or

acquiescence of a public official.” 8 C.F.R. § 1208.18(a)(1); see id.

§ 1208.18(a)(7).

      In reaching these conclusions, the BIA did not err by not expressly

addressing Dr. Thomas Boerman’s expert opinion. See Feng Gui Lin v. Holder,

588 F.3d 981, 987 (9th Cir. 2009). Nor did the BIA erroneously assess Lopez-

Garcia’s credibility or evaluate the truth of his statements when it concluded that

Lopez-Garcia’s allegations were vague and unpersuasive. See Shouchen Yang v.

Lynch, 822 F.3d 504, 509 (9th Cir. 2016).

      Because Lopez-Garcia failed to raise any arguments relating to the BIA’s

October 21, 2011 order in his opening brief, he has waived his challenge to this

order. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). But even if

such a challenge were not waived, we would hold the BIA did not err in denying

him relief because Lopez-Garcia did not file an application for asylum within one

year of entering the United States, see 8 U.S.C. § 1158(a)(2)(B), because he has


                                          4
not shown that it is more likely than not that he would be subject to persecution on

account of his membership in a particular social group or on account of his

political opinions, see id. § 1231(b)(3)(A), and because he has not shown that it is

more likely than not he would be tortured if removed to El Salvador, see 8 C.F.R.

§ 1208.16(c)(2).

      PETITIONS DENIED.




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