HERNANDEZ HUIZACHE v. BARR (2019)

MEMORANDUM **

Alejandro Hernandez-Huizache, a native and citizen of Mexico, petitions pro se for review of the Board of Immigrations Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). 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, Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir. 2019), and we deny in part and dismiss in part the petition.

The record does not compel the conclusion that Hernandez-Huizache established “changed circumstances” or “extraordinary circumstances” so that his asylum application should have been considered notwithstanding its late filing. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)-(5).

Because Hernandez-Huizache did not raise before the BIA his due process claim related to the IJ’s findings, we lack jurisdiction to review it here. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We reject as unsupported by the record Hernandez-Huizache’s contentions that the BIA violated his right to due process.

Regarding his claim for withholding of removal and asylum, substantial evidence supports the BIA’s determination that Hernandez-Huizache did not establish past persecution or a fear of future persecution due to membership in a particular social group. 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.”); INS v. Elias-Zacarias, 502 U.S. 478, 481-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (noting requirement of a nexus between alleged fear of persecution and membership in a particular social group). To the extent Hernandez-Huizache raises new social groups, we do not consider them because they were not raised before the BIA. Barron, 358 F.3d at 678.

Substantial evidence also supports the BIA’s determination that Hernandez-Huizache has not demonstrated that it is more likely than not he will experience torture upon his return to Mexico, as required to be eligible for CAT relief. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (holding that speculative claims of torture are insufficient to afford relief).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.