                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       DEC 18 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ADRIAN OSWALDO ESQUIVEL-                        No.    19-70001
HERNANDEZ,
                                                Agency No. A212-909-722
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                          Submitted December 11, 2019**

Before:      WALLACE, CANBY, and TASHIMA, Circuit Judges.

      Adrian Oswaldo Esquivel-Hernandez, a native and citizen of El Salvador,

petitions pro se 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 jurisdiction is governed by 8 U.S.C. § 1252. We

      *
             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).
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 deny in part

and dismiss in part the petition for review.

      We do not address Esquivel-Hernandez’s contentions as to the timeliness of

his asylum application because the BIA assumed it was timely and addressed the

merits of his claim. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.

2011) (“In reviewing the decision of the BIA, we consider only the grounds relied

upon by that agency.” (citation and internal quotation marks omitted)).

      The BIA did not err in finding that Esquivel-Hernandez’s social group based

on resisting gang violence was not cognizable. See Reyes v. Lynch, 842 F.3d 1125

(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))). Substantial evidence supports the agency’s

determination that Esquivel-Hernandez otherwise failed to show the harm he

suffered or fears was or would be on account of a protected ground. See Zetino v.


                                          2                                   19-70001
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.”). We lack jurisdiction to consider

Esquivel-Hernandez’s social group based on his status as a former gang member

because he did not raise it to the BIA. 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, his asylum and withholding of removal claims fail.

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

Esquivel-Hernandez 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 El Salvador.

See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture

too speculative).

      To the extent that Esquivel-Hernandez raises humanitarian asylum and

political opinion claims, we lack jurisdiction to consider them. See Barron, 358

F.3d at 677-78.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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