NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO DURAN SALGADO, Nos. 12-73883
13-72315
Petitioner,
Agency No. A073-868-373
v.
MATTHEW G. WHITAKER, Acting MEMORANDUM*
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Eduardo Duran Salgado, 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 asylum,
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).
(petition No. 12-73883), and of the BIA’s order denying his motion to reconsider
and motion to reopen removal proceedings (petition No. 13-72315). We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings and we review for abuse of discretion the BIA’s denial of
motions to reconsider and reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th
Cir. 2005). In petition No. 12-73883, we deny Salgado’s petition as to his asylum
and withholding of removal claims, and grant and remand his petition as to his
CAT claim. In petition No. 13-72315, we dismiss.
In petition No. 12-73883, as to asylum, Salgado does not challenge the
agency’s dispositive finding that his asylum application is time-barred. 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). Thus, we
deny the petition as to Salgado’s asylum claim.
As to Salgado’s fear of general conditions in Mexico, substantial evidence
supports the agency’s finding that he failed to establish a nexus to a protected
ground. See 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.”). As to
Salgado’s fear of harm based on a particular social group, substantial evidence
supports the agency’s finding that, even if Salgado established past persecution, the
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government rebutted Salgado’s presumed well-founded fear of future persecution
with evidence that he could safely and reasonably relocate within Mexico to avoid
harm. See 8 C.F.R. §§ 1208.16(b)(1)(i)(B), (b)(3); Gonzalez-Hernandez v.
Ashcroft, 336 F.3d 995, 998-99 (9th Cir. 2003) (substantial evidence supported
finding that presumption of future persecution was rebutted). Thus, Salgado’s
withholding of removal claim fails.
As to Salgado’s CAT claim, the agency found that Salgado failed to
establish the necessary state action. When the BIA and IJ issued their decisions,
they did not have the benefit of this court’s decisions in Barajas-Romero v. Lynch,
846 F.3d 351, 362 (9th Cir. 2017) (“The statute and regulations do not establish a
‘rogue official’ exception to CAT relief.”), and Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1079-80 (9th Cir. 2015) (BIA erred by requiring petitioner to also
show the “acquiescence” of the government when the harm was inflicted by public
officials themselves). Thus, we grant the petition for review as to Salgado’s CAT
claim, and remand to the agency for consideration of his CAT claim consistent
with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
In light of our above conclusion, we dismiss as moot Salgado’s challenge to
the BIA’s denial of his motion to reconsider and motion to reopen (No. 13-72315).
Each party shall bear its own costs for these petitions for review.
NO. 12-73883: PETITION FOR REVIEW DENIED in part;
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GRANTED in part; REMANDED.
NO. 13-72315: PETITION FOR REVIEW DISMISSED.
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