NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO NARANJO-LUCATERO, No. 18-73085
Petitioner, Agency No. A079-166-635
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2022**
Portland, Oregon
Before: GRABER, BEA, and M. SMITH, Circuit Judges.
Petitioner Francisco Naranjo-Lucatero seeks review of the Board of
Immigration Appeals’ (BIA) order denying his applications for asylum, withholding
of removal, and relief under the Convention Against Torture (CAT). Because the
parties are familiar with the facts, we do not recount them here, except as necessary
*
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).
to provide context to our ruling. We review legal questions de novo and the agency’s
factual findings for substantial evidence. See Aden v. Wilkinson, 989 F.3d 1073,
1079 (9th Cir. 2021). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we
deny the petition for review.
Naranjo-Lucatero contends that the agency lacked jurisdiction over his
immigration case because the notice to appear did not include the time and date of
his removal hearing.1 This argument fails under our precedent because Naranjo-
Lucatero later received notice of the time and date of the hearing and attended. See
Karingithi v. Whitaker, 913 F.3d 1158, 1160–61 (9th Cir. 2019).
On the merits, substantial evidence supports the agency’s denial of asylum
and withholding of removal. An asylum applicant “must demonstrate that he has
suffered past persecution or has a well-founded fear of future persecution on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (citing 8
U.S.C. § 1101(a)(42)). Naranjo-Lucatero does not allege any past persecution.
Rather, he fears future persecution from the Mexican mafia because he has lived in
the United States. The agency found that Naranjo-Lucatero’s proposed social group
1
Naranjo-Lucatero’s argument depends on Pereira v. Sessions, 138 S. Ct. 2105
(2018), which was decided after briefing to the BIA was complete. Although
Naranjo-Lucatero did not present his jurisdictional argument to the agency,
exhaustion is not required because no administrative remedy was previously
available. See Alvarado v. Holder, 759 F.3d 1121, 1128–30 (9th Cir. 2014).
2
of Mexicans returning home from the United States was overly broad and could not
support an asylum application.2 Substantial evidence supports this determination.
See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29 (9th Cir. 2016); Delgado-
Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (per curiam). Because we
affirm the agency’s determination that Naranjo-Lucatero failed to establish
eligibility for asylum, we also affirm denial of the application for withholding of
removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Lastly, to be eligible for CAT relief, Naranjo-Lucatero must show he “will
more likely than not be tortured with the consent or acquiescence of a public official
if removed to [his] native country.” See Xochihua-Jaimes v. Barr, 962 F.3d 1175,
1183 (9th Cir. 2020). Although Naranjo-Lucatero may fear private actors in Mexico,
he offered only general evidence of violence and crime in Mexico. The agency
considered country conditions evidence and concluded it did not show that Naranjo-
Lucatero faced an individualized risk of torture. Substantial evidence supports the
agency’s finding. See Delgado-Ortiz, 600 F.3d at 1152.
PETITION FOR REVIEW DENIED.
2
The BIA did not err by declining to consider Naranjo-Lucatero’s proposed
particular social group of “persons who are perceived as wealthy because of the
amount of time they have spent in the U.S.,” because it was raised for the first time
on appeal. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019).
3