NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN PINEDA-FLORES, No. 17-73391
Petitioner, Agency No. A075-595-941
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Christian Pineda-Flores, a native and citizen of Guatemala, 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
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
*
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).
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.
We do not consider Pineda-Flores’s family-based social group claim because
the BIA did not decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820,
829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA), and
Pineda-Flores does not contend the BIA erred in finding that his family-based
social group claim was not properly before it, see Corro-Barragan v. Holder, 718
F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief
resulted in waiver).
The BIA did not err in finding that Pineda-Flores did not otherwise 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
2 17-73391
1148, 1151-52 (9th Cir. 2010) (“returning Mexicans from the United States” not
particular enough to be a cognizable social group); 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, Pineda-Flores’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Pineda-Flores 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 Guatemala. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Zheng v. Holder,
644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative). We
lack jurisdiction to consider Pineda-Flores’s contention that the IJ failed to fully
consider his claim for CAT relief because he failed to raise the issue to the BIA.
See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (“Petitioner
will . . . be deemed to have exhausted only those issues he raised and argued in his
brief before the BIA.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 17-73391
Christian Pineda-Flores v. William Barr
Combined Opinion