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United States Court of Appeals, Ninth Circuit.

Jonatan Gabriel FERNANDEZ-CATALAN, aka Francisco Rivera-Mendez, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 15-70634

Decided: June 28, 2021

Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges. Alex Galvez, Counsel, Law Office Alex Galvez, Los Angeles, CA, for Petitioner Colin J. Tucker, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent


Jonatan Gabriel Fernandez-Catalan, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge's decision denying his application for asylum, withholding of removal, and protection 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.

We lack jurisdiction to consider the newly argued contentions in Fernandez-Catalan's brief regarding asylum and withholding of removal because he did not raise them before the agency. Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).

We exercise our discretion to review the agency's conclusion that Fernandez-Catalan failed to establish that he would be persecuted on account of a protected ground, notwithstanding his failure to brief the issue adequately. Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004). Substantial evidence supports the agency's conclusion. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“[A]n 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, Fernandez-Catalan's asylum and withholding of removal claims fail.

Substantial evidence supports the agency's denial of CAT protection because Fernandez-Catalan failed to show that it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Guatemala. Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

The temporary stay of removal remains in place until issuance of the mandate.


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