Jose Najera v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ARMANDO NAJERA, AKA Jose No. 19-71098 Soto Najera, Agency No. A094-449-362 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 14, 2023** Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges. Jose Armando Najera, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture * 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). (“CAT”). Our 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 dismiss in part and deny in part the petition for review. To the extent Najera contends he suffered past persecution, we lack jurisdiction to review the contention because he failed to raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). In his opening brief, Najera fails to raise, and therefore forfeits, challenge to the BIA’s determinations regarding family membership. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th Cir. 2013). The BIA did not err in concluding that Najera 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 2 19-71098 determination that Najera otherwise failed to demonstrate a nexus between the harm he fears in El Salvador and 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”). Thus, Najera’s asylum and withholding of removal claims fail. Najera does not challenge, and therefore forfeits, the BIA’s determination that he failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Lopez- Vasquez, 706 F.3d at 1079-1080. Thus, his CAT claim fails. We lack jurisdiction to consider Najera’s contentions regarding removability because he failed to raise them before the BIA. See Barron, 358 F.3d at 677-78. Najera’s opposed motion to remand (Docket Entry No. 25) is denied. The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DISMISSED, in part; DENIED, in part. 3 19-71098