NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL GARDUNO FONSECA, AKA No. 16-70410
Gabriel Garduno, AKA Jonathan Garduno,
Agency No. A095-690-229
Petitioner,
v. MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Gabriel Garduno Fonseca, a native and citizen of Mexico, petitions pro se
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”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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), and we review de novo questions of law, Mohammed v. Gonzales,
400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the
petition for review.
Substantial evidence supports the agency’s conclusion that Garduno Fonseca
did not establish he was persecuted in Mexico, see Hoxha v. Ashcroft, 319 F.3d
1179, 1182 (9th Cir. 2003), and the agency’s determination that he failed to
demonstrate it is more likely than not he would be persecuted in Mexico on
account of an enumerated ground, including membership in a particular social
group comprised of his family, see INS v. Elias-Zacarias, 502 U.S. 478, 483
(1992); 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.”). We reject as
unsupported by the record Garduno Fonseca’s contentions that the IJ
mischaracterized his social group claim or that the BIA failed to address it
properly. Thus, his withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of Garduno Fonseca’s
CAT claim because he did not demonstrate it is more likely than not he would be
tortured by or with the consent or acquiescence of the Mexican government if
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returned. See Alphonsus v. Holder, 705 F.3d 1031, 1049 (9th Cir. 2013) (despite
troubling country reports, record did not compel the conclusion that petitioner
himself would more likely than not be tortured).
The BIA properly concluded that because Garduno Fonseca failed to request
cancellation of removal before the IJ, the claim was not properly presented for
appellate review. See In re 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).
Finally, we lack jurisdiction to consider Garduno Fonseca’s contention that
he had ineffective assistance of counsel because he did not raise this claim to the
BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (petitioner must
exhaust claims in administrative proceedings below).
PETITION FOR REVIEW DENIED in part; DIMISSED in part.
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