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United States Court of Appeals, Ninth Circuit.

Macario CIFUENTES-RODRIGUEZ, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 19-71722

Decided: February 23, 2021

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges. Nanya Y. M. Thompson, Nanya Thompson Law, Inc., San Diego, CA, for Petitioner Dana Michelle Camilleri, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent


Macario Cifuentes-Rodriguez, a native and citizen of Guatemala, petitions for review of an immigration judge's (“IJ”) determination under 8 C.F.R. § 1208.31(a) that he did not have a reasonable fear of persecution or torture in Guatemala and thus is not entitled to relief from his reinstated removal order. We have jurisdiction under 8 U.S.C. § 1252. We review an IJ's negative reasonable fear determination for substantial evidence. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). We deny the petition for review.

Substantial evidence supports the IJ's determination that Cifuentes-Rodriguez failed to establish a reasonable possibility of persecution in Guatemala on account of his family membership. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of his membership in such group”); 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”). Cifuentes-Rodriguez does not challenge the IJ's determinations regarding his fear of persecution on account of any other protected grounds. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party's opening brief are waived).

Substantial evidence also supports the IJ's determination that Cifuentes-Rodriguez failed to demonstrate a reasonable possibility of torture by or with the consent or acquiescence of the government if returned to Guatemala. See Andrade-Garcia, 828 F.3d at 836-37 (no reasonable possibility of torture with state action); see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (generalized evidence of violence insufficient to establish eligibility for CAT).

We reject as unsupported by the record Cifuentes-Rodriguez's contentions that the IJ and asylum officer violated his right to due process or otherwise erred in the analysis of his claims.

We do not consider the materials Cifuentes-Rodriguez references in his opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc). Cifuentes-Rodriguez's motion to supplement the record or for judicial notice (Docket Entry No. 13) is denied. See id.

The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal (Docket Entry Nos. 1 and 5) is otherwise denied.


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