                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 23 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ISMAEL AQUINO-CONTRERAS,                        No.    15-70971

                Petitioner,                     Agency No. A206-410-430

 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

      Ismael Aquino-Contreras, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing Aquino-

Contreras’ appeal from an immigration judge’s (“IJ”) decision denying Aquino-

Contreras’ 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).
      Our 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. Zehatye v.

Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and dismiss in

part the petition for review.

      Aquino-Contreras argues that he is entitled to asylum, but he does not

challenge the BIA’s finding that his asylum application was untimely and that he

does not qualify for an exception to the timeliness requirement. See 8 C.F.R.

§ 1208.4(a). Review of this issue is waived. 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, his asylum claim fails.

      Aquino-Contreras’ withholding of removal claim also fails. Substantial

evidence supports the BIA’s conclusion that he 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




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within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,

237 (BIA 2014))).

      Moreover, substantial evidence supports the BIA’s conclusion that Aquino-

Contreras otherwise failed to establish he would be persecuted because 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”). Our

conclusion is not affected by the differing nexus standards applicable to asylum

and withholding of removal claims. Cf. Barajas-Romero v. Lynch, 846 F.3d 351,

360 (9th Cir. 2017) (discussing Zetino v. Holder having drawn no distinction

between the standards where there was no nexus at all to a protected

ground). Thus, Aquino-Contreras’ withholding of removal claim fails.

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

Aquino-Contreras 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 Mexico. See

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

      Aquino-Contreras does not challenge the BIA’s denial of his motion to

remand for submission of additional evidence. Review of this claim is waived.

See Martinez-Serrano, 94 F.3d at 1259-60.




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      Finally, Aquino-Contreras claims, for the first time, that he should not be

removed because he applied for Deferred Action for Childhood Arrivals

(“DACA”), and requests remand so that he can present additional evidence

regarding his DACA claims. We lack jurisdiction to consider this claim because it

was never presented to the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78

(9th Cir. 2004).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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