NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERMIN LOPEZ-GALICIA, No. 15-71516
Petitioner, Agency No. A078-754-713
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 22, 2021**
Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.
Fermin Lopez-Galicia, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his applications for withholding of removal,
protection under the Convention Against Torture (“CAT”), and cancellation 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).
removal.
Our jurisdiction is governed by 8 U.S.C. § 1252. We 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.
Substantial evidence supports the agency’s determination that Lopez-Galicia
failed to establish ten years of continuous physical presence, as would be required
for eligibility for cancellation of removal. The record includes a signed Form I-
826 consenting to a departure that took place less than 10 years before the issuance
in 2010 of his Notice to Appear. Lopez-Galicia has not shown that, when he
signed Form I-826 in 2001, his acceptance of administrative voluntary departure in
lieu of removal proceedings was not knowing and voluntary. See 8 U.S.C. §
1229b(b)(1)(A); Gutierrez v. Mukasey, 521 F.3d 1114, 1117-18 (9th Cir. 2008)
(requiring some evidence that the alien was informed of and accepted the terms of
the voluntary departure agreement). Lopez-Galicia’s testimony does not compel a
contrary conclusion, where he was given an opportunity to read the Form I-826
before signing it, and where he has not shown that the representations of
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immigration officials were inaccurate or misleading. Cf. Ibarra-Flores v.
Gonzales, 439 F.3d 614, 619-20 (9th Cir. 2006) (insufficient evidence that alien
knowingly and voluntarily accepted voluntary departure where record did not
contain the voluntary departure form and alien’s testimony suggested that he
accepted return due to misrepresentations by immigration authorities).
Substantial evidence supports the agency’s conclusion that Lopez-Galicia
failed to establish that he would be persecuted on account of a protected ground.1
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, Lopez-
Galicia’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT protection
because Lopez-Galicia 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 Mexico.
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The temporary stay of removal remains in place until issuance of the
mandate.
1
Lopez-Galicia contends that he belongs to a cognizable particular social group as
a “Mexican male adult with long residence and family ties in the United States.”
We lack jurisdiction to consider this claim because Lopez-Galicia did not raise it
before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (the
court lacks jurisdiction to review unexhausted claims).
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PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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