NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONATAN GABRIEL FERNANDEZ- No. 15-70634
CATALAN, AKA Francisco Rivera-
Mendez, Agency No. A205-604-356
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 24, 2021**
Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.
Jonatan Gabriel Fernandez-Catalan, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ order dismissing his
appeal from an immigration judge’s decision denying his application for asylum,
*
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).
withholding of removal, and protection under the Convention Against Torture
(“CAT”).
Our jurisdiction is governed by 8 U.S.C. § 1252. 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 lack jurisdiction to consider the newly argued contentions in Fernandez-
Catalan’s brief regarding asylum and withholding of removal because he did not
raise them before the agency. Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.
2004).
We exercise our discretion to review the agency’s conclusion that
Fernandez-Catalan failed to establish that he would be persecuted on account of a
protected ground, notwithstanding his failure to brief the issue adequately. Alcaraz
v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004). Substantial evidence supports the
agency’s conclusion. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(“[A]n 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, Fernandez-Catalan’s asylum and withholding of removal claims
fail.
Substantial evidence supports the agency’s denial of CAT protection
because Fernandez-Catalan failed to show that it is more likely than not he will be
2 15-70634
tortured by or with the consent or acquiescence of the government if returned to
Guatemala. Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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