Raul Linares-Zepeda v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 16-72200
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAUL LINARES-ZEPEDA, No. 16-72200

Petitioner, Agency No. A200-822-651

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

Respondent.

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

Submitted August 7, 2019**

Before: THOMAS, Chief Judge, HAWKINS, and McKEOWN, Circuit Judges.

Raul Linares-Zepeda, a native and citizen of El Salvador, petitions for review

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

immigration judge’s (“IJ”) decision denying his application for withholding of

removal and relief under the Convention Against Torture (“CAT”).

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except

to the extent that deference is owed to the BIA’s interpretation of the governing

statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).

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.

Substantial evidence supports the agency’s determination that Linares-

Zepeda did not suffer past persecution. See Lim v. I.N.S., 224 F.3d 929, 936 (9th

Cir. 2000). The BIA did not err in finding that Linares-Zepeda’s proposed social

group of “Salvadoran males returning to El Salvador who have been threatened by

gang[s] who lack police protection” is not a cognizable social group. See Reyes v.

Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership

in a particular group, “[t]he applicant must ‘establish that the group is (1)

composed of members who share a common immutable characteristic, (2) defined

with particularity, and (3) socially distinct within the society in question’” (quoting

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). To the extent

Linares-Zepeda asserts that he will be persecuted on account of additional

protected grounds, his claims were not presented to the BIA and we lack

2 jurisdiction to review them. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th

Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

Moreover, substantial evidence supports the BIA’s conclusion that Linares-

Zepeda otherwise failed to establish that he would be persecuted because of a

protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an

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”). Our

conclusion is not affected by the differing nexus standards applicable to asylum

and withholding of removal claims. Cf. Barajas-Romero v. Lynch, 846 F.3d 351,

360 (9th Cir. 2017) (discussing Zetino v. Holder having drawn no distinction

between the standards where there was no nexus at all to a protected

ground). Thus, Linares-Zepeda’s withholding of removal claim fails.

Although Linares-Zepeda claims the agency erred in denying his CAT

claim, he failed to advance this contention before the BIA. Accordingly, we lack

jurisdiction to review Linares- Zepeda’s contentions regarding his CAT claim. See

Barron, 358 F.3d at 677–78.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.