BARRIENTOS RUIZ v. BARR (2019)

MEMORANDUM **

Jose Manuel Barrientos-Ruiz, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s 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 for substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). We dismiss in part and deny in part the petition for review.

We lack jurisdiction to consider the proposed social groups that Barrientos-Ruiz raises for the first time in his opening brief. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

As to Barrientos-Ruiz’s claim based on harm by gangs, substantial evidence supports the agency’s determination that Barrientos-Ruiz failed to demonstrate that the harm he experienced or fears was or would be 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.”). As to Barrientos-Ruiz’s claim based on harm by his aunt, substantial evidence supports the agency’s determination that Barrientos-Ruiz failed to establish that the government of El Salvador was or will be unable or unwilling to control the perpetrator. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (discussing petitioner’s burden to establish that the government was unwilling or unable to control the persecution feared and finding the record did not compel that conclusion). Thus, Barrientos-Ruiz’s asylum and withholding of removal claims fail.

Substantial evidence also supports the agency’s denial of CAT relief because Barrientos-Ruiz failed to show it is more likely than not that he would be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.