NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATARINO VARELA-SANTOS; et al., No. 15-73359
Petitioners, Agency Nos. A206-763-992
A206-763-993
v. A206-763-994
A206-763-995
WILLIAM P. BARR, Attorney General, A206-763-996
Respondent.
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 7, 2019**
Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges
Catarino Varela-Santos, Ana Cecilia Gutierrez-De Varela, and their three
children (together, “Petitioners”), all of whom are natives and citizens of El
Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) decision denying their
*
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).
application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except
to the extent that deference is owed to the BIA’s interpretation of the governing
statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
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.
Substantial evidence supports the BIA’s denial of Petitioners’ asylum and
withholding of removal claims. Substantial evidence supports the BIA’s
conclusion that Petitioners did not suffer threats or any physical harm rising to the
level of past persecution. See Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000).
The BIA did not err in finding that Petitioners did not establish membership in a
cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016)
(in order to demonstrate membership in a particular group, “[t]he applicant must
‘establish that the group is (1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,
237 (BIA 2014))). Petitioners argue they fear persecution on account of a political
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opinion or their membership in a social group composed of their family, but these
claims were not raised before the BIA, so we lack jurisdiction to review them. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to review claims not presented to the agency). Substantial evidence supports the
agency’s conclusion that Petitioners otherwise failed to establish they would be
persecuted on account of 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”).
Substantial evidence supports the agency’s denial of CAT relief because
Petitioners failed to show it is more likely than not they will be tortured by or with
the consent or acquiescence of the government if returned to El Salvador. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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