JENNY VASQUEZ-FLORES, ET AL V. MERRICK GARLAND, No. 17-70585 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 18 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS JENNY MARISOL VASQUEZ-FLORES; No. 17-70585 HERSSON WALMIR CORTEZ-GOMEZ; et al., Agency Nos. A208-541-052 A208-541-053 Petitioners, A208-541-054 A208-542-012 v. A208-542-013 MERRICK B. GARLAND, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 15, 2022** Before: CANBY, CALLAHAN, and BADE, Circuit Judges. Jenny Marisol Vasquez-Flores, Hersson Walmir Cortez-Gomez, and their three minor children, natives and citizens of El Salvador, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from * 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). an immigration judge’s (“IJ”) decision denying their applications for asylum, and denying Vasquez-Flores’s and Cortez-Gomez’s applications for 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. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s determination that petitioners failed to establish they were or would be persecuted on account of 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”); see also Barrios v. Holder, 581 F.3d 849, 854 (9th Cir. 2009) (“resistance to gang membership is not a protected ground”). We do not consider petitioners’ proposed particular social group of “Salvadorans who have reported criminal activity of the MS-13 to the police” because the BIA did not decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA), and petitioners do not contend the BIA erred in finding that their particular social group claim was not properly before it, see Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in 2 17-70585 waiver). We do not address petitioners’ contentions as to whether they established past persecution or a well-founded fear of future persecution because the BIA did not deny relief on these grounds. See Santiago-Rodriguez, 657 F.3d at 829. Therefore, petitioners’ asylum claims, and Vasquez-Flores’s and CortezGomez’s withholding of removal claims fail. We lack jurisdiction to consider Vasquez-Flores’s and Cortez-Gomez’s contentions as to CAT protection where the BIA found petitioners waived any challenge as to CAT. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must exhaust issues or claims in administrative proceedings below). To the extent petitioners claim that the IJ violated their due process rights or otherwise erred in its analysis, we lack jurisdiction to consider the contention because they failed to raise it before the BIA. See id. We do not consider the materials petitioners reference in their opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 96364 (9th Cir. 1996) (en banc). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 17-70585
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