DEJESUS ZARRAGA AKA v. SESSIONS III (2018)

MEMORANDUM **

Emilio DeJesus-Zarraga, 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 (“IJ”) decision denying his application for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). We deny in part and dismiss in part the petition for review.

In his opening brief, DeJesus-Zarraga fails to contest the BIA’s determination that he waived any challenge to the IJ’s dispositive finding that his asylum application was untimely. 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). Thus, we deny the petition as to DeJesus-Zarraga’s asylum claim.

Substantial evidence supports the agency’s conclusion that DeJesus-Zarraga failed to establish that he was or would be persecuted in Mexico on account 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.”). Further, we lack jurisdiction to consider the particular social groups DeJesus-Zarraga presents for the first time in his opening brief. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must exhaust issues or claims in administrative proceedings below). Thus, DeJesus-Zarraga’s withholding of removal claim fails.

Finally, substantial evidence supports the agency’s denial of CAT relief because DeJesus-Zarraga failed to establish it is more likely than not he will be tortured with the consent or acquiescence of the government of Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

PETITION FOR REVIEW DENIED in part, DISMISSED in part.