NOT FOR PUBLICATION FILED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
JOSE MANUEL GONZALEZ- No. 16-70856
CERVANTES, AKA Jose Manuel
Cervantes Gonzalez, AKA Jose Manual, Agency No. A087-990-749
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.
Jose Manuel Gonzalez-Cervantes, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s 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).
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. Garcia-Milian v. Holder,
755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the
petition for review.
The BIA did not err in finding that Gonzalez-Cervantes’s social group of
“Chicano males aged 18-40 returning to Mexico after living most of their lives in
the United States” was not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131
(9th Cir. 2016) (in order to demonstrate membership in a particular social 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 Barbosa v. Barr, 926 F.3d 1053,
1059-60 (9th Cir. 2019) (finding that individuals returning to Mexico from the
United States who are believed to be wealthy does not constitute a particular social
group).
2
Gonzalez-Cervantes also fears harm in Mexico based on his family social
group. Substantial evidence supports the agency’s determination that Gonzalez-
Cervantes failed to establish that he would be persecuted on account of his
membership in such group. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir.
2011) (even if membership in a particular social group is established, an applicant
must still show that “persecution was or will be on account of his membership in
such group” (emphasis in original)); 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”). Our conclusion is not affected by the differing nexus
standards applicable to asylum and withholding of removal claims. Cf. Barajas-
Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (discussing Zetino v. Holder
having drawn no distinction between the standards where there was no nexus at all
to a protected ground). Thus, we reject Gonzalez-Cervantes’s contention that the
case should be remanded pursuant to Barajas-Romero v. Lynch.
We lack jurisdiction to consider Gonzalez-Cervantes’s claim that he is a
member of the particular social group “persons opposed to cartel activities by
refusing extortions” because he did not exhaust this claim before 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).
3
Thus, Gonzalez-Cervantes’s asylum and withholding of removal claims fail.
Substantial evidence supports the agency’s denial of CAT relief because
Gonzalez-Cervantes failed to show it is more likely than not that he would be
tortured by or with the consent or acquiescence of the government of Mexico. See
See Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not
establish the necessary “state action” for CAT relief).
Gonzales-Cervantes has waived any challenge to the agency determination
that he failed to establish that he would be persecuted on account of his religion or
imputed political opinion. 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).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
4
Jose Gonzalez-Cervantes v. William Barr
Combined Opinion