NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO ENRIQUE GOMEZ, No. 17-73006
Petitioner, Agency No. A213-014-525
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Guillermo Enrique Gomez, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for withholding of
removal and relief under the Convention Against Torture (“CAT”). Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo the legal question
of whether a particular social group is cognizable, except to the extent that
deference is owed to the BIA’s interpretation of the governing statutes and
regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We
review for substantial evidence the agency’s factual findings. Id. at 1241. We
review de novo claims of due process violations in immigration proceedings.
Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in
part the petition for review.
The agency did not err in concluding that Gomez did not establish
membership in a cognizable particular social group. 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))). Substantial evidence
supports the BIA’s determination that Gomez otherwise failed to establish the
harm he fears in Guatemala would be 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”).
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Gomez’s contention that the BIA failed to consider evidence of the visibility
of his decorative, not gang-related tattoos in its withholding analysis fails as
unsupported by the record. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir.
2010) (the agency need not write an exegesis on every contention); Fernandez v.
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the
presumption that the BIA reviewed the record).
To the extent Gomez raises a new proposed particular social group in his
opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d
674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented
to the agency).
Thus, Gomez’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Gomez failed to show it is more likely than not he would be tortured by or with the
consent or acquiescence of the government if he returned to Guatemala. See
Andrade v. Lynch, 798 F.3d 1242, 1244-45 (9th Cir. 2015) (substantial evidence
supported the agency’s finding that petitioner being deported from a wealthier
country with “decorative, not gang-related” tattoos failed to establish a clear
probability of torture).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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