RODRIGUEZ MENDEZ v. BARR (2020)

MEMORANDUM **

Juan Carlos Rodriguez-Mendez, 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 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. 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 Rodriguez-Mendez failed to establish he was or would be persecuted on account of a protected ground. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (an applicant “must provide some evidence of [motive], direct or circumstantial” (emphasis in original)); see also 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”). Thus, Rodriguez-Mendez’s withholding of removal claim fails.

We lack jurisdiction to consider Rodriguez-Mendez’s contentions regarding nexus to a newly proposed social group of “being targeted by the local cartels because he is arriving from outside of the country” because they were not raised to the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

Substantial evidence also supports the agency’s denial of CAT relief because Rodriguez-Mendez failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Garcia-Milian v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (concluding that petitioner did not establish the necessary “state action” for CAT relief).

The BIA did not err by not addressing Rodriguez-Mendez’s arguments regarding the timeliness of asylum because the record indicates he did not raise that claim to the IJ. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (BIA did not err in declining to consider argument raised for the first time on appeal); Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007) (issues not raised to the IJ are not properly before the BIA on appeal).

Lastly, we reject Rodriguez-Mendez’s contentions that the agency erred in its analysis of his case.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.