NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ANTONIO CRUZ-GARCIA, AKA No. 15-71949
Juan Anotnio Cruz, AKA Juan Antonio
Cruz, Agency No. A070-947-374
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
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.
Juan Antonio Cruz-Garcia, a native and citizen of El Salvador, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
Cruz’s appeal from an immigration judge’s decision denying Cruz’s application for
cancellation of removal, asylum, withholding of removal, and relief under the
*
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).
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
§ 1252(a)(1), and we deny in part and dismiss in part the petition.
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).
The BIA did not err in finding that Cruz 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))); see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.
2010) (returnees from the United States “is too broad to qualify as a cognizable
social group”); Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (returnees
with perceived wealth is not a cognizable social group). We lack jurisdiction to
review Cruz’s claim based on a social group of family, because he did not present
it to the agency. 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
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evidence supports the agency’s conclusion that Cruz otherwise failed to establish
he 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”). Thus, Cruz’s asylum and withholding of
removal claims fail.
Substantial evidence supports the agency’s denial of CAT relief because
Cruz failed to show it is more likely than not he 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); Garcia-Milian v. Holder, 755 F.3d
1026, 1033-35 (9th Cir. 2014) (concluding that petitioner did not establish the
necessary “state action” for CAT relief).
Cruz waived any challenge to the agency’s denial of his cancellation of
removal claim by omitting it from his opening brief. Martinez-Serrano v. INS, 94
F.3d 1256, 1259-60 (9th Cir. 1996).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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Juan Cruz-Garcia v. William Barr
Combined Opinion