NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER JIMENEZ GARCIA, No. 20-70506
Petitioner, Agency No. A205-536-679
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an
Immigration Judge’s Decision
Submitted February 1, 2021**
Pasadena, California
Before: GOULD, OWENS, and VANDYKE, Circuit Judges.
Francisco Javier Jimenez Garcia (Petitioner) seeks review of the Immigration
Judge’s (IJ) decision concurring with the Department of Homeland Security (DHS)
asylum officer’s conclusion that Petitioner failed to demonstrate a reasonable fear of
persecution in Mexico. We have jurisdiction to review the IJ’s decision
*
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).
under 8 U.S.C. § 1252(a)(1) and we deny the petition.
We review the IJ’s reasonable fear factual findings for substantial evidence.
Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). Under that standard,
“administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” Halim v. Holder, 590 F.3d 971,
975 (9th Cir. 2009) (citation omitted). Petitioners subject to a reinstated removal
order may seek either withholding of removal or protection under the Convention
Against Torture (CAT). Andrade-Garcia, 828 F.3d at 832.1 To qualify for such
relief, the petitioner must demonstrate in a reasonable fear interview a “reasonable
possibility that he … would be persecuted on account of his … race, religion,
nationality, membership in a particular social group or political opinion.”
8 C.F.R. § 208.31(c).
Substantial evidence supports the IJ’s determination that Petitioner failed to
demonstrate the requisite nexus between the alleged persecution and a protected
1
While Petitioner references before this court the asylum officer’s determination
that he did not have a reasonable fear of torture, Petitioner’s brief does not challenge
this conclusion with any analysis other than stating, in passing, that the incidents he
detailed as persecution were also torture. This is insufficient to raise a CAT claim
and the issue is therefore forfeited. Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th
Cir. 2011). Even if Petitioner had properly preserved this claim, the record does not
compel the conclusion the IJ erred as Petitioner does not demonstrate any
“particularized threat of torture” or that he “would face any particular threat of
torture beyond that of which all citizens of [Mexico] are at risk.” Dhital v. Mukasey,
532 F.3d 1044, 1051–52 (9th Cir. 2008) (per curiam) (citation omitted).
2
ground. In Petitioner’s reasonable fear interview with the DHS asylum officer,2
Petitioner answered “no” when asked if he had “any problems in Mexico because of
[his] political opinion,” his “religion,” “race, ethnicity, or nationality,” or “because
[he was] part of a group … that people in Mexico see as different.” In testifying
before both the DHS asylum officer and the IJ, Petitioner expressed fear of Mexican
cartels, affirmed that he was “robbed multiple times by gang members and the
police,” and was once kidnapped from his father’s business along with three others
by unknown assailants, told he would be killed if no one paid his ransom, and was
later found and released by the Mexican police. Petitioner argues before this court
that, although he previously testified that he believed his attackers targeted him
because they “just wanted money,” these experiences constituted past persecution
motivated by his family ties to his father as owner of a business.3
The evidence does not a compel a conclusion contrary to the IJ’s
determination that although Petitioner was “the victim of some criminal actions
2
It was not legal error for the IJ to consider the DHS officer’s notes because the IJ
reviews de novo “all of the previously produced evidence” in conjunction with
“additional testimony from” the petitioner. Bartolome v. Sessions, 904 F.3d 803,
812 (9th Cir. 2018).
3
Petitioner also argues the IJ “reject[ed] the fact that Petitioner was persecuted based
on his family ties,” and argues the cartel threatened to kill him if they could not
“obtain money from his family.” These statements are not reflected anywhere in the
record. Because Petitioner did not credibly raise his family ties as a particular social
group before the IJ, we lack jurisdiction to address this unexhausted claim.
8 U.S.C. § 1252(d)(1); see Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004).
3
… there is insufficient evidence to indicate that [he] would suffer any harm on
account of” any protected ground. Petitioner stated the kidnappers specifically
targeted him and the three other individuals captured solely for money, denied
knowing whether the kidnappers knew anything about him, and stated that the other
robberies he experienced also affected “everyone” else “[o]n the bus.” This evidence
supports the IJ’s conclusion that “the problems that [Petitioner] suffered in the past
[were] … related to either a desire for money or possessions,” and do not
demonstrate a nexus to a protected ground. See Ochave v. INS, 254 F.3d 859, 866
(9th Cir. 2001) (“When we consider the record as a whole, there is evidence that the
attack was not … motivated” by a protected ground). A petitioner’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.” Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010); see also Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir.
2019); Bartolome, 904 F.3d at 814. Substantial evidence therefore supports the IJ’s
concurrence in the DHS officer’s determination that Petitioner lacked a reasonable
fear of persecution.4
PETITION DENIED.
4
Because we deny the petition for review, we also deny as moot Petitioner’s motion
for stay of removal (ECF No.1).
4