                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        DEC 5 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

EDUARDO DURAN SALGADO,                          Nos. 12-73883
                                                     13-72315
                Petitioner,
                                                Agency No. A073-868-373
 v.

MATTHEW G. WHITAKER, Acting                     MEMORANDUM*
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.

      Eduardo Duran Salgado, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his 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).
(petition No. 12-73883), and of the BIA’s order denying his motion to reconsider

and motion to reopen removal proceedings (petition No. 13-72315). We have

jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

agency’s factual findings and we review for abuse of discretion the BIA’s denial of

motions to reconsider and reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th

Cir. 2005). In petition No. 12-73883, we deny Salgado’s petition as to his asylum

and withholding of removal claims, and grant and remand his petition as to his

CAT claim. In petition No. 13-72315, we dismiss.

      In petition No. 12-73883, as to asylum, Salgado does not challenge the

agency’s dispositive finding that his asylum application is time-barred. 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). Thus, we

deny the petition as to Salgado’s asylum claim.

      As to Salgado’s fear of general conditions in Mexico, substantial evidence

supports the agency’s finding that he failed to establish a nexus to 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.”). As to

Salgado’s fear of harm based on a particular social group, substantial evidence

supports the agency’s finding that, even if Salgado established past persecution, the


                                          2                                    12-73883
government rebutted Salgado’s presumed well-founded fear of future persecution

with evidence that he could safely and reasonably relocate within Mexico to avoid

harm. See 8 C.F.R. §§ 1208.16(b)(1)(i)(B), (b)(3); Gonzalez-Hernandez v.

Ashcroft, 336 F.3d 995, 998-99 (9th Cir. 2003) (substantial evidence supported

finding that presumption of future persecution was rebutted). Thus, Salgado’s

withholding of removal claim fails.

      As to Salgado’s CAT claim, the agency found that Salgado failed to

establish the necessary state action. When the BIA and IJ issued their decisions,

they did not have the benefit of this court’s decisions in Barajas-Romero v. Lynch,

846 F.3d 351, 362 (9th Cir. 2017) (“The statute and regulations do not establish a

‘rogue official’ exception to CAT relief.”), and Avendano-Hernandez v. Lynch,

800 F.3d 1072, 1079-80 (9th Cir. 2015) (BIA erred by requiring petitioner to also

show the “acquiescence” of the government when the harm was inflicted by public

officials themselves). Thus, we grant the petition for review as to Salgado’s CAT

claim, and remand to the agency for consideration of his CAT claim consistent

with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

      In light of our above conclusion, we dismiss as moot Salgado’s challenge to

the BIA’s denial of his motion to reconsider and motion to reopen (No. 13-72315).

      Each party shall bear its own costs for these petitions for review.

      NO. 12-73883: PETITION FOR REVIEW DENIED in part;


                                         3                                   12-73883
GRANTED in part; REMANDED.

    NO. 13-72315: PETITION FOR REVIEW DISMISSED.




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