NOT FOR PUBLICATION FILED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
AMILCAR NOE CIFUENTES, Jr., Nos. 13-74201
14-73517
Petitioner,
Agency No. A070-184-948
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Amilcar Noe Cifuentes, a native citizen of Guatemala, 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 asylum,
withholding of removal, relief under the Convention Against Torture (“CAT”) and
*
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).
denying his motion to remand (petition No. 13-74201), and the BIA’s order
denying his motion to reopen (petition No. 14-73517). 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 review de novo ineffective assistance of counsel claims and we review for
abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petitions
for review.
As to petition No. 13-74201, substantial evidence supports the BIA’s finding
that Cifuentes failed to establish past persecution or a well-founded fear of future
persecution on account of a protected ground. See Zetino v. Holder, 622 F.3d
1007, 1016 (9th Cir. 2010) (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 lack jurisdiction to consider Cifuentes’ contention
that he established membership in a particular social group because he failed to
raise it to the BIA in his direct appeal. See Barron v. Ashcroft, 358 F.3d 674, 677-
78 (9th Cir. 2004). Thus, Cifuentes’ asylum and withholding of removal claims
fail.
We also lack jurisdiction to consider Cifuentes’ contention that he is entitled
to CAT relief because he failed to raise any arguments as to the IJ’s denial of CAT
2 13-74201 / 14-73517
relief in his direct appeal. See id.
Finally, the BIA did not err in rejecting Cifuentes’ ineffective assistance of
counsel claim where he failed to demonstrate prejudice. See Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (no prejudice from ineffective
assistance of counsel when petitioner presents no “plausible grounds for relief”).
In light of this disposition, we do not reach Cifuentes remaining ineffective
assistance of counsel contentions.
As to petition No. 14-73517, the BIA did not abuse its discretion by denying
Cifuentes’ untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); see also
Cano-Merida v. INS, 311 F.3d 960, 965-66 (9th Cir. 2002) (no abuse of discretion
in denying motion to reopen where petitioner did not establish prima facie
eligibility for relief).
No. 13-74201: PETITION FOR REVIEW DENIED in part,
DISMISSED in part.
No. 14-73517: PETITION FOR REVIEW DENIED.
3 13-74201 / 14-73517