Jasiel Lopez Diaz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2020
• Docket: 19-71346
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JASIEL LOPEZ DIAZ, No. 19-71346

Petitioner, Agency No. A206-673-009

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Jasiel Lopez Diaz, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for withholding of removal

and relief under the Convention Against Torture (“CAT”). Our jurisdiction is

governed by 8 U.S.C. § 1252. We review factual findings for substantial evidence.

* 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). Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part

and dismiss in part the petition for review.

We do not consider Lopez Diaz’s asylum claim because the BIA did not

decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.

2011) (review limited to the grounds relied on by the BIA), and Lopez Diaz does

not contend the BIA erred in concluding that his asylum claim was not properly

before it where he is in withholding-only proceedings, see Corro-Barragan v.

Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening

brief resulted in waiver).

Substantial evidence supports the determination that Lopez Diaz failed to

establish that the harm he experienced or fears in Mexico was or would be on

account of a protected ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir.

2011) (even if membership in a particular social group is established, an applicant

must still show that “persecution was or will be on account of his membership in

such group”); Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (“To

establish a nexus to the political opinion ground, the [petitioner] must show (1) that

[he] had either an affirmative or imputed political opinion, and (2) that [he was]

targeted on account of that opinion.”); Grava v. INS, 205 F.3d 1177, 1181 n.3 (9th

Cir. 2000) (“Purely personal retribution is, of course, not persecution on account of

political opinion.”). To the extent Lopez Diaz raises a new particular social group

2 based on imputed political opinion, we lack jurisdiction to consider that claim. See

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction

to review claims not presented below). Thus, Lopez Diaz’s withholding of

removal claim fails.

Substantial evidence also supports the denial of CAT relief because Lopez

Diaz failed to show it is more likely than not he would be tortured by or with the

consent or acquiescence of the government if returned to Mexico. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Wakkary v. Holder, 558

F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).

The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise

denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.