                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JOSE GARCIA-RODRIGUEZ, AKA Jose                 No.    15-73834
Garcia-Rodrigue,
                                                Agency No. A205-719-890
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                               Submitted June 2, 2020**

Before:      LEAVY, PAEZ, and BENNETT, Circuit Judges.

      Jose Garcia-Rodriguez, a native and citizen of Mexico, petitions 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



      *
             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).
jurisdiction is governed by 8 U.S.C. § 1252. 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. Garcia-Milian v. Holder,

755 F.3d 1026, 1031 (9th Cir. 2014). We review de novo due process claims in

immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We

deny in part and dismiss in part the petition for review.

      Garcia-Rodriguez does not raise, and has thus waived, any challenge to the

agency’s dispositive determination that he failed to establish changed or

extraordinary circumstances to excuse his untimely asylum application. See

Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not

specifically raised and argued in a party’s opening brief are waived).

      The BIA did not err in finding that Garcia-Rodriguez failed to establish

membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d

1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular

social 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 within the society in question’” (quoting

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); see also Delgado-



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Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (concluding “returning

Mexicans from the United States” did not constitute a particular social group).

Substantial evidence supports the agency’s determination that Garcia-Rodriguez

failed to establish that 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”); see also 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”).

      To the extent Garcia-Rodriguez raises in his opening brief a political opinion

claim and new particular social groups, we lack jurisdiction to consider them. See

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction

to review claims not presented to the agency).

      Thus, Garcia-Rodriguez’s withholding of removal claim fails.

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

Garcia-Rodriguez 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 Mexico. See

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). The record does not support

Garcia-Rodriguez’s contentions that the agency ignored evidence or otherwise



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erred in considering CAT relief.

      Garcia-Rodriguez’s contention that the agency violated his due process

rights fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error

to prevail on a due process claim).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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