FRANCIS OLIVA-ZEPEDA V. MERRICK GARLAND, No. 19-72564 (9th Cir. 2021)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAR 29 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT FRANCIS GILBERTO OLIVA-ZEPEDA, Petitioner, v. No. U.S. COURT OF APPEALS 19-72564 Agency No. A094-386-413 MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 26, 2021** Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges Francis Gilberto Oliva-Zepeda, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying cancellation of removal and his application for asylum, withholding of removal, relief under the * 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). Convention Against Torture (“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. We lack jurisdiction to consider Oliva-Zepeda’s contentions regarding the agency’s discretionary denial of cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Monroy v. Lynch, 821 F.3d 1175, 1177-78 (9th Cir. 2016) (this court lacks jurisdiction to review the agency’s weighing of the equities). Substantial evidence supports the agency’s determinations that Oliva-Zepeda failed to file his asylum application within the one-year time limit and did not establish changed circumstances sufficient to excuse the untimely filing. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(4). The agency did not err in concluding that Oliva-Zepeda’s proposed social groups were 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 2 19-72564 within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). Substantial evidence supports the agency’s determination that Oliva-Zepeda did not otherwise establish that the harm he experienced or fears was or would be 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”). Oliva-Zepeda’s withholding of removal claim thus fails. Substantial evidence supports the agency’s denial of CAT relief because Oliva-Zepeda 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 Honduras. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise denied.1 PETITION FOR REVIEW DISMISSED in part; DENIED in part. 1 We lack jurisdiction to consider Oliva-Zepeda’s request for voluntary departure because he failed to exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). 3 19-72564

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