NOT FOR PUBLICATION                        FILED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

JOSE MANUEL GONZALEZ-                           No.    16-70856
CERVANTES, AKA Jose Manuel
Cervantes Gonzalez, AKA Jose Manual,            Agency No. A087-990-749

                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.

      Jose Manuel Gonzalez-Cervantes, 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”).

      *
             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. Garcia-Milian v. Holder,

755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the

petition for review.

      The BIA did not err in finding that Gonzalez-Cervantes’s social group of

“Chicano   males aged 18-40 returning to Mexico after living most of their lives in

the United States” was not cognizable. 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 Barbosa v. Barr, 926 F.3d 1053,

1059-60 (9th Cir. 2019) (finding that individuals returning to Mexico from the

United States who are believed to be wealthy does not constitute a particular social

group).

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      Gonzalez-Cervantes also fears harm in Mexico based on his family social

group. Substantial evidence supports the agency’s determination that Gonzalez-

Cervantes failed to establish that he would be persecuted on account of his

membership in such group. See 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” (emphasis in original)); 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, we reject Gonzalez-Cervantes’s contention that the

case should be remanded pursuant to Barajas-Romero v. Lynch.

      We lack jurisdiction to consider Gonzalez-Cervantes’s claim that he is a

member of the particular social group “persons opposed to cartel activities by

refusing extortions” because he did not exhaust this claim 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).


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      Thus, Gonzalez-Cervantes’s asylum and withholding of removal claims fail.

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

Gonzalez-Cervantes failed to show it is more likely than not that he would be

tortured by or with the consent or acquiescence of the government of Mexico. See

See Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not

establish the necessary “state action” for CAT relief).

      Gonzales-Cervantes has waived any challenge to the agency determination

that he failed to establish that he would be persecuted on account of his religion or

imputed political opinion. 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).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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