NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DELIO DE JESUS CORLETO

MARTINEZ , AKA Delio De Jesus Coleto

Martinez, AKA Delio Jesus Corletto, AKA Delio Jesus Corletto

- Martinez, AKA Corletto Delio De Jesus,

Petitioner ,

v. MERRICK B. GARLAND , Attorney General, Respondent

. No s
. 17

- 73005 18

- 72226 20

- 71296 Agency No. A0 26

- 987

- 936

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals
Submitted July 7 , 202 1 * * Seattle, Washington
Before: CLIFTON and IKUTA , Circuit Judges, and CALDWELL, ** * District Judge.

* 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 Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. 

# FILED

JUL 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Delio De Jesus Corleto

- Martinez , a native and citizen of El Salvador , petitions
for review of an i mmigration j udge’s ( IJ ) decision and two orders of the Board of Immigration Appeals ( BIA ) in this consolidated case . C orleto first petitions for review of the IJ’s determination that he lacked a reasonable fear of persecution o r torture in El Salvador and therefore is not entitled to relief from his reinstated removal order. Corleto also petitions for review of two decisions from the BIA denying motions to reopen his original deportation order. We have jurisdiction
under 8 U.S .C. § 1252, and we deny Corleto’s petition s
. With respect to Corleto’s first petition, s ubstantial evidence supports the IJ’s conclusion that Corleto failed to establish a reasonable fear of persecution in El Salvador on account of a protected ground. Corleto does not claim a fear of persecution on account of his race, religion, nationality, or political opinion; instead , his claim is based on his alleged membership in a particular social group. However, at most, the evidence in the record demonstrates that gangs in El Salvador targeted
Corleto because he owned cows , and, thus, they perceive d him to have money. These motivations do not give rise to a viable social group claim, as this Court has pointed out

. See Bartolome v. Sessions , 904 F.3d 803, 814 (9th Cir. 2018) (“[G]angs did not target Bartolome based on a protected ground. Rather, t he gangs targeted him because they perceived him to have money, which we have not recognized as a3

cognizable social group.” (citing Ramirez

- Munoz v. Lynch , 816 F.3d 1226, 1229 (9th Cir. 2016))).
Corleto nevertheless argues that the IJ erred “by not rec ognizing that the persecution here was . . . based on [his] family business, which is the basis of a [particular social group] and a protected class.” The IJ, however, did not commit
reversible error simply because he failed to interpret the evidence in t he manner now advocated by Corleto. See Don v. Gonzalez , 476 F.3d 738, 744 (9th Cir. 2007). That is particularly true given that the underlying record contains little, if any, evidence that the gang s specifically targeted Corleto because of his familial ties. The IJ
considered all of the evidence and concurred with an asylum officer’s earlier negative reasonable fear determination. The evidence in the record does not compel a contrary result, as would be required to reverse the IJ’s decision. See Barto lome , 904 F.3d at 811

. Corleto’s claim based on his alleged fear of torture is also unavailing. As an initial matter , Corleto does not challenge in his opening brief the IJ’s determination
that he failed to establish a reasonable fear of torture in El Salvador. Thus , Corleto has waived appellate review of this issue. See Lopez

- Vasquez v. Holder , 706 F.3d 1072, 1079

- 80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are waived); Rizk v. Holder , 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (same). Plus , even if Corleto did not waive appellate review , substantial evidence4

supports the IJ’s decision. That is because Corleto failed to show 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 Garcia

- Milian v. Holder , 755 F.3d
1 026 , 1 033

- 34 (9th Cir. 20 14 ). With respect to Corleto’s second and third petitions, t he BIA lacked jurisdiction to entertain his two motion s to reopen. Federal law clearly states that “[i]f the Attorney General finds that an alien has reentered the United States illegally
af ter having been removed . . . the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed .” 8 U.S.C. § 1231(a)(5) (emphasis added). This Court has recognized that § 1231(a)(5)’s language “unambiguously bar[s] reopening a reinstated prior removal order.”
Cuenca v. Barr , 956 F.3d 1079, 1084 ( 9th Cir. 2020). Here, Corleto was deported from the United States in 2006, he reentered the country illegally, and his prior removal order was reinstated. As a result, Corleto’s original deportation proceedings cannot be reopened. To be sure, this Court has recognized “th at reinstatement does not insulate a prior removal order from review under all circumstances.” Id. at 1087. We have explained that a petitioner may collaterally attack “the underlying removal order during review of the reinstatement order if the petition er can show that he has suffered a ‘gross miscarriage of justice’ in the initial deportation proceeding.” Id.5

(quoting Garcia de Rincon v. Dep’t of Homeland Sec. , 539 F.3d 1133, 1138 (9th Cir. 2008) (emphasis added))

. However, Corleto did n ot collaterall y attack his underlying removal order through a challenge to his reinstatement order itself. 1 Rather, Corleto questioned the validity of his removal order in two separate motions to reopen. That , he simply cannot do. See Cuenca , 956 F.3d at 1087. There is no established “gross miscarriage of justice” exception to § 1231(a)(5)’s reopening bar.
See id. We recognize that the BIA did not deny Corleto’s first motion to reopen on this ground. Our review is typically limited to “[t]he grounds upon which . . . the record discloses that [the agency’s] action was based.” Hernandez

- Cruz v. Holder , 651 F.3d 1094, 1109 (9th Cir. 2011) (citation omitted). But that doctrine has no application where the agency, as here, was required to deny the motion to reopen.
Se e Morgan Stanley Capital Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty. , 554 U.S. 527, 544

- 45 (2008). “That it provided a different rationale for the necessary result is no cause for upsetting its ruling” because to remand “would be
an idle and us eless formality” and would otherwise “convert judicial review of agency action into a ping

- pong game.” Id. at 545 (citation omitted). Ultimately , the BIA did not have the statutory authority to reopen Corleto’s initial removal order,

1 While Corleto challenge d his reinstated removal order in his first petition , his arguments there are limited to the IJ’s negative determination regarding his fear of returning to El Salvador.6

and, thus, it properly denied his motions to reopen. Because we conclude that the BIA did not have jurisdiction to consider Corleto’s motions to reopen, we need not address his arguments regarding equitable tolling and the BIA’s sua sponte authority.
PETITION S DENIED .