BENJAMIN MELARA-AMAYA V. MATTHEW WHITAKER, No. 17-73318 (9th Cir. 2018)
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FILED NOT FOR PUBLICATION DEC 3 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT BENJAMIN ABDALY MELARAAMAYA, No. U.S. COURT OF APPEALS 17-73318 Agency No. A205-196-455 Petitioner, MEMORANDUM* v. MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 27, 2018** Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges. Benjamin Abdaly Melara-Amaya, 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 (“IJ”) decision denying his * 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). application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 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 review de novo questions of law. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We deny the petition for review. The BIA did not err by declining to consider Melara-Amaya’s political opinion claim where it was not raised to the IJ. See Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007). As to Melara-Amaya’s claims for asylum and withholding of removal based on family membership, substantial evidence supports the BIA’s determination that Melara-Amaya failed to establish that any harm was or would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (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”). Otherwise, the agency’s determination that Melara-Amaya failed to establish a cognizable social group is supported. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular 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 2 17-73318 distinct within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). Thus, in the absence of a nexus to a protected ground, Melara-Amaya’s asylum and withholding claims fail. We reject Melara-Amaya’s contention that the case should be remanded in light of Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017). Finally, substantial evidence supports the agency’s denial of CAT relief because Melara-Amaya failed to show it is more likely than not that he will be tortured by or with the consent or acquiescence of the government of El Salvador. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative). PETITION FOR REVIEW DENIED. 3 17-73318
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