                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        APR 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

RICARDO GABRIEL HERNANDEZ-                      No.    16-73475
MARTINEZ,
                                                Agency No. A206-673-212
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                               Submitted April 7, 2020**

Before:      TASHIMA, BYBEE, and WATFORD, Circuit Judges.

      Ricardo Gabriel Hernandez-Martinez, 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 withholding of removal and relief under the Convention Against



      *
             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).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review

questions of law de novo, 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 deny in part

and dismiss in part the petition for review.

      Substantial evidence supports the agency’s determination that Hernandez-

Martinez failed to establish past persecution based on the events his mother

experienced. See Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)

(“An applicant alleging past persecution has the burden of establishing that (1) his

treatment rises to the level of persecution; (2) the persecution was on account of

one or more protected grounds; and (3) the persecution was committed by the

government, or by forces that the government was unable or unwilling to

control.”). Substantial evidence also supports the agency’s determination that

Hernandez-Martinez failed to establish an objectively reasonable fear of future

persecution based on these events. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th

Cir. 2003) (possibility of future persecution “too speculative”).

      Substantial evidence supports the agency’s determination that Hernandez-

Martinez failed to establish that the harm he experienced or fears from organized


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criminal groups 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”).

      The agency did not err in determining that Hernandez-Martinez failed to

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) socially distinct within the society in question’” (quoting Matter of M-E-V-G-,

26 I. & N. Dec. 227, 237 (BIA 2014))); see also Barbosa v. Barr, 926 F.3d 1053,

1059-60 (9th Cir. 2019) (concluding that “individuals ‘returning to Mexico [from]

the United States [who] are believed to be wealthy’” was too broad to constitute a

cognizable social group); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir.

2016) (concluding “imputed wealthy Americans” returning to Mexico did not

constitute a particular social group). To the extent Hernandez-Martinez proposes

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, Hernandez-Martinez’s withholding of removal claim fails.


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

Hernandez-Martinez failed to show that 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 Hernandez-Martinez’s contentions that the

agency ignored evidence and misapplied the law.

      We do not reach Hernandez-Martinez’s contentions regarding eligibility for

asylum, credibility, and changed country conditions. See Najmabadi v. Holder,

597 F.3d 983, 986 (9th Cir. 2010) (the court’s review is limited to the actual

grounds relied upon by the BIA).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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