                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 28 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

DAVID BARZILAI VELASQUEZ-                       No.    16-71291
MIRANDA,
                                                Agency No. A077-459-955
                Petitioner,

 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.

      David Barzilai Velasquez-Miranda (“Velasquez-Miranda”), a native and

citizen of Guatemala, petitions for review of the Board of Immigration Appeals’

(“BIA”) order dismissing Velasquez-Miranda’s appeal from an immigration

judge’s (“IJ”) decision denying Velasquez-Miranda’s application for asylum,



      *
             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).
withholding of removal, and relief under the Convention Against Torture (“CAT”).

Our jurisdiction is governed by 8 U.S.C. § 1252(a), and we deny in part and

dismiss in part the petition.

      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 review de novo our jurisdiction. Pena v. Lynch, 815 F.3d 452, 455 (9th Cir.

2016).

      Velasquez-Miranda’s asylum claim is not properly before this court because

Velasquez-Miranda waived it before the IJ and did not present it to the BIA, and

therefore the claim is not exhausted. See Barron v. Ashcroft, 358 F.3d 674, 677-78

(9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the

agency).

      The BIA did not err in finding that Velasquez-Miranda did not establish

membership in a cognizable social group. 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)


                                          2                                       16-71291
socially distinct 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 conclusion that Velasquez-

Miranda otherwise failed to establish he 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”).

      Thus, Velasquez-Miranda’s withholding of removal claim fails.

      Substantial evidence supports the agency’s denial of CAT relief because

Velasquez-Miranda 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 Guatemala.

See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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