PEDRO GONZALEZ-GASPAR V. WILLIAM BARR, No. 15-71737 (9th Cir. 2019)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 23 2019 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT PEDRO GONZALEZ-GASPAR, Petitioner, No. U.S. COURT OF APPEALS 15-71737 Agency No. A200-630-195 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 7, 2019** Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges. Pedro Gonzalez-Gaspar, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing GonzalezGaspar’s appeal from an immigration judge’s (“IJ”) decision denying GonzalezGaspar’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). * 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). 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. Even if Gonzalez-Gaspar’s asylum claim were not time-barred, see 8 U.S.C. § 1158(a)(2)(B), it fails on the merits. The BIA did not err in finding that Gonzalez-Gaspar’s claimed social group of individuals who are presumed wealthy because they have returned from the United States is not cognizable. 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 distinct within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). We lack jurisdiction to review Gonzalez-Gaspar’s unexhausted claim based on the social group of “Guatemalans living in the country who have been identified as having U.S.-based family members.” See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). 2 Substantial evidence supports the agency’s determination that GonzalezGaspar otherwise failed to establish a nexus between the harm he fears 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”). Our conclusion is not affected by the differing nexus standards applicable to asylum and withholding of removal claims. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (discussing Zetino v. Holder having drawn no distinction between the standards where there was no nexus at all to a protected ground). Thus, Gonzalez-Gaspar’s asylum and withholding claims fail. Gonzalez-Gaspar does not challenge in his petition for review the BIA’s denial of his CAT claim and thus has waived any argument based thereon. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3
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