NELSON FUNES-FLORES V. WILLIAM BARR, No. 15-73610 (9th Cir. 2020)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 29 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT NELSON FUNES-FLORES, Petitioner, No. U.S. COURT OF APPEALS 15-73610 Agency No. A205-249-955 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 26, 2020** Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges. Nelson Funes-Flores, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial * 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). evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 118485 (9th Cir. 2006). We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s determination that Funes-Flores failed to establish he was or would be persecuted on account of a protected ground, including membership in his family-based social group. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of his membership in such group”); 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”). We do not address Funes-Flores’s contentions as to the cognizability of his social group because the BIA did not reach that issue. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.” (citation and internal quotation marks omitted)). Thus, Funes-Flores’s asylum and withholding of removal claims fail. Substantial evidence supports the agency’s denial of CAT relief because Funes-Flores 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 El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Garcia-Milian v. 2 15-73610 Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (concluding that petitioner did not establish the necessary “state action” for CAT relief). In his opening brief, Funes-Flores does not challenge the agency’s determinations regarding his humanitarian asylum and due process claims. 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). We lack jurisdiction to consider Funes-Flores’s request for prosecutorial discretion. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order). As stated in the court’s February 11, 2016 order, the temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 15-73610
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