NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ALBERTO CHAVEZ-FARIAS, No. 17-71944
Petitioner, Agency No. A077-158-480
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Immigration Judge
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Luis Alberto Chavez-Farias, a native and citizen of Mexico, 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 Mexico and thus
is not entitled to relief from his reinstated removal order. Our jurisdiction is
*
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).
governed by 8 U.S.C. § 1252. We review for substantial evidence the IJ’s factual
findings. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). We
dismiss in part and deny in part the petition for review.
Chavez-Farias does not dispute his removability under 8 U.S.C.
§ 1182(a)(6)(A)(i). Thus, even if Chavez-Farias’s conviction has been vacated, he
has not established a gross miscarriage of justice so as to permit review of his
collateral challenge to the underlying removal order. See Garcia de Rincon v.
Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008) (while a petitioner is
generally prevented from collaterally attacking an underlying removal order on
constitutional due process grounds, 8 U.S.C. § 1252(a)(2)(D) permits some
measure of review if the petitioner can demonstrate a “gross miscarriage of justice”
in the prior proceedings). We therefore lack jurisdiction to review Chavez-Farias’s
challenge to the removal order.
We also lack jurisdiction to consider Chavez-Farias’s proposed social group
that he raises for the first time in his opening brief. See Barron v. Ashcroft, 358
F.3d 674, 677-78 (9th Cir. 2004) (petitioner must exhaust issues or claims in
administrative proceedings below).
Substantial evidence supports the IJ’s conclusion that Chavez-Farias failed
to demonstrate a reasonable possibility of future persecution in Mexico on account
of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
2 17-71944
(petitioner’s “desire to be free from harassment by criminals motivated by theft or
random violence . . . bears no nexus to a protected ground”); Molina-Morales v.
INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (harm based on personal retribution is
not persecution on account of a protected ground).
Finally, substantial evidence also supports the IJ’s conclusion that Chavez-
Farias failed to demonstrate a reasonable possibility of torture by or with the
consent or acquiescence of the government of Mexico. See Andrade-Garcia, 828
F.3d at 836-37.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 17-71944