DAVILA LOPEZ v. BARR (2019)

MEMORANDUM **

Bayron Davila-Lopez (“Davila-Lopez”), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing Davila-Lopez’s appeal from an immigration judge’s (“IJ”) decision denying Davila-Lopez’s application for withholding of removal and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252(a), and we deny in part and dismiss in part the petition.

Where, as here, the BIA adopts the IJ’s reasoning, we review both the IJ’s and BIA’s decisions. Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019). 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 review de novo our jurisdiction. Pena v. Lynch, 815 F.3d 452, 455 (9th Cir. 2016).

The agency did not err in finding that Davila-Lopez did not establish membership in 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))).

Substantial evidence supports the agency’s conclusion that Davila-Lopez failed to establish he was or would be persecuted on account of a protected ground. Even though he was the victim of crime, there is no connection between the alleged extortion by gang members and 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, Davila-Lopez’s withholding of removal claim fails.

We do not have jurisdiction to review Davila-Lopez’s claim for CAT relief because he failed to exhaust his administrative remedies on appeal to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Additionally, Davila-Lopez waived his claim for CAT relief before this court. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.