NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRES SANTIAGO-MATEO, No. 16-71159
Petitioner, Agency No. A206-695-877
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Andres Santiago-Mateo, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing Santiago-
Mateo’s appeal from an immigration judge’s (“IJ”) decision denying his
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
*
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).
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.
The BIA did not err in finding that Santiago-Mateo 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 Barrios v. Holder, 581 F.3d 849, 854
(9th Cir. 2009). Substantial evidence supports the BIA’s determination that
Santiago-Mateo did not otherwise establish that 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, Santiago-Mateo’s asylum and withholding of removal claims fail.
2 16-71159
Substantial evidence also supports the agency’s denial of CAT relief
because Santiago-Mateo failed to show that it is more likely than not he will be
tortured by or with the consent or acquiescence of the government if returned to
Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
We do not reach Santiago-Mateo’s contentions as to ineffective assistance of
counsel. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order)
(finding that to the extent petitioners contended they received ineffective assistance
of counsel, the court lacked jurisdiction to review unexhausted claims that could
have been corrected by the BIA); see also Singh v. Napolitano, 649 F.3d 899, 900,
902-03 (9th Cir. 2011) (per curiam) (concluding that petitioner’s claim of
ineffective assistance of counsel, based on his prior attorney’s conduct after the
final order of removal was entered, was unexhausted because petitioner failed to
first file a motion to reopen with the BIA).
We reject Santiago-Mateo’s contention that the immigration court lacked
jurisdiction over his case. See Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th
Cir. 2019) (initial notice to appear need not include time and date information to
vest jurisdiction in immigration court).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 16-71159