Alvaro Rodriguez-Avendano v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2018
• Docket: 16-73940
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALVARO RODRIGUEZ-AVENDANO, No. 16-73940

Petitioner, Agency No. A205-151-054

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

Respondent.

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

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Alvaro Rodriguez-Avendano, a native and citizen of Mexico, petitions pro

se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his application for

asylum, withholding of removal, and relief 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”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d

1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in part the petition for

review.

Rodriguez-Avendano does not challenge the agency’s dispositive finding

that his asylum application is time-barred. See Rizk v. Holder, 629 F.3d 1083,

1091 n.3 (9th Cir. 2011) (issues not raised in an opening brief are waived). Thus,

we deny the petition as to his asylum claim.

Substantial evidence supports the agency’s finding that Rodriguez-

Avendano failed to establish that he would be persecuted on account of a protected

ground. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016)

(“imputed wealthy Americans” not cognizable as a particular social group);

Delgado-Oritz v. Holder, 600 F.3d 1148, 1151-53 (9th Cir. 2010) (“returning

Mexicans from the United States” not cognizable as a particular social group);

Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (applicant’s “desire to be

free from harassment by criminals motivated by theft or random violence by gang

members bears no nexus to a protected ground”). Thus, Rodriguez-Avendano’s

withholding of removal claim fails.

2 16-73940 Substantial evidence also supports the agency’s denial of CAT relief because

Rodriguez-Avendano failed to show it is more likely than not that he will be

tortured by the government of Mexico, or with its consent or acquiescence. See

Garcia-Milian v. Holder, 755 F.3d 1026, 1034-35 (9th Cir. 2014).

Finally, we lack jurisdiction to consider Rodriguez-Avendano’s contentions

as to voluntary departure because he failed to exhaust them before the agency. See

Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (court lacks jurisdiction to

review issues or claims not presented to the agency). Similarly, we lack

jurisdiction to consider Rodriguez-Avendano’s argument that the IJ violated his

right to due process by failing to advise him of alleged eligibility for administrative

closure because he failed to exhaust this argument before the BIA. See id.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 16-73940