NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 26 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

RODOLFO ALEJANDRO LOPEZ                         No.    15-73913
FIERRO, AKA Rodolfo A. Lopez, AKA
Rodolfo A. Lopez Fi,                            Agency No. A210-103-654

                Petitioner,
                                                MEMORANDUM*
 v.

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.

      Rodolfo Alejandro Lopez-Fierro, a native and citizen of Mexico, petitions

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

Fierro’s appeal from an immigration judge’s decision denying Lopez-Fierro’s

application for asylum, withholding of removal, and relief under the Convention


      *
             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).
Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252(a)(1),

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).

      The BIA did not err in finding that Lopez-Fierro 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)

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 (9th Cir. 2019) (returnees with perceived wealth is not a cognizable social

group). We lack jurisdiction to review Lopez-Fierro’s claim based on a social

group of family, because he did not exhaust it before the agency. 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, Lopez-Fierro’s asylum and withholding

of removal claims fail.


                                          2
      Substantial evidence supports the agency’s denial of CAT relief because

Lopez-Fierro 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); Garcia-Milian v. Holder, 755 F.3d

1026, 1033-35 (9th Cir. 2014) (concluding that petitioner did not establish the

necessary “state action” for CAT relief).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                            3