Angel Javier Mejia-Lobo v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL JAVIER MEJIA-LOBO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73396
Agency No. A206-766-742
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 7, 2022
Seattle, Washington
Before: MURGUIA, Chief Judge, and W. FLETCHER and BENNETT, Circuit
Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Petitioner Angel Mejia-Lobo, a native and citizen of Honduras, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his applications for
asylum, protection under the Convention Against Torture (“CAT”), and
withholding of removal. We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition in part and dismiss it in part.
Petitioner entered the United States as an unaccompanied minor without being
admitted or paroled on May 28, 2014. He applied for asylum, withholding of
removal, and CAT relief on February 1, 2016. Petitioner’s claims are largely based
on the fact that his neighborhood in Honduras was controlled by the MS-13 criminal
gang. Petitioner testified that “everyone in the neighborhood” was afraid of being
recruited or targeted by the gang.
The BIA found that Petitioner waived his withholding of removal claim
because he “d[id] not meaningfully challenge the [IJ’s] determination that he did not
establish eligibility for withholding of removal.” We agree. See Alanniz v. Barr,
924 F.3d 1061, 1069 & n.8 (9th Cir. 2019) (finding failure to exhaust where “CAT
was mentioned only twice in [petitioner’s] brief to the BIA, in the introduction and
in the conclusion”). Thus, we lack jurisdiction to review this unexhausted claim.
See Taniguchi v. Schultz, 303 F.3d 950, 955–56 (9th Cir. 2002) (noting jurisdictional
effect of failing to exhaust pursuant to § 1252(d)(1)).

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As to asylum, Petitioner claims he was persecuted based on his political
opinions and on account of his family membership. Petitioner claims that his gang
resistance and refusal to join MS-13 “constitutes expression of a political opinion.”
By Petitioner’s own account, the gang beat him and threatened to “kill [him] for not
paying” in response to extortion attempts. But substantial evidence supports the
BIA’s finding that Petitioner did not show that “his opposition to gang activity
constituted a political opinion, or that he had been or would be harmed on account
of his political opinion.” See Santos-Lemus v. Mukasey, 542 F.3d 738, 746–47 (9th
Cir. 2008), abrogated in part on other grounds by Henriquez-Rivas v. Holder, 707
F.3d 1081, 1093 (9th Cir. 2013).
As part of his asylum claim, Petitioner claims that MS-13 exists as a de facto
government in Honduras, and thus “statements against and actions in defiance of the
gang are inherently political in nature.” But Petitioner’s evidence is insufficient to
show that his opposition to gangs constituted a political opinion. Regalado-Escobar
v. Holder, 717 F.3d 724 (9th Cir. 2013), on which Petitioner relies, held that “even
if the BIA had correctly held that opposition to a political organization’s violent
activities can constitute a political opinion,” the petitioner in that case failed to show
that he “was attacked on account of any principled opposition to the [armed group
acting as a political party] or its violence, rather than on account of his failure to
cooperate in the [group’s] recruitment efforts.” 717 F.3d at 730. Here, Petitioner

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also failed to show that his opposition went beyond resisting the gang’s extortion
and recruitment.
Additionally, while Petitioner argues that his membership in the particular
social group of his family was “one central reason” for his persecution by MS-13,
substantial evidence supports the BIA’s affirmance of the IJ’s determination that
“the central reason that the gang targeted [Petitioner] initially was because he
stopped paying the war tax they imposed . . . , and then because he refused to join”
the gang.1 Substantial evidence also supports the BIA’s determination that Petitioner
“did not establish that the motivation of the gang members for harming members of
his family was on account of animus against his family as a whole,” because “gangs
targeted anyone who interfered with their criminal initiative.”
Because Petitioner has not established that his past persecution was related to
his membership in a particular social group, he bears the burden to establish a well-
founded fear of future persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1152
(9th Cir. 2005) (past persecution or objectively reasonable fear of future persecution,
and nexus to a protected ground are elements of asylum claim). Petitioner has not
1 Petitioner argues that the IJ and the BIA “both misapplied the mixed-motive
standard for asylum cases by requiring that the protected ground be the reason for
the persecution.” But the record does not support this claim.

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done so, and has waived any argument that he did. See Garcia v. Lynch, 786 F.3d
789, 793 (9th Cir. 2015).2
Finally, as to Petitioner’s Convention Against Torture claims, substantial
evidence supports the agency’s determination that he would not be tortured by or
with the acquiescence of the Honduran government. See Lopez v. Sessions, 901 F.3d
1071, 1078 (9th Cir. 2018). First, the record lacked particularized evidence that the
police or other government officials in Honduras would acquiesce or be willfully
blind to Petitioner’s torture, and Petitioner has not shown it is more likely than not
that he would be tortured if removed. See Akosung v. Barr, 970 F.3d 1095, 1104
(9th Cir. 2020) (“Under the CAT regulations, the applicant bears the burden of
establishing that ‘it is more likely than not that he or she would be tortured if
removed.’” (quoting 8 C.F.R. § 1208.16(c)(2)). Substantial evidence supports the
agency’s finding that Petitioner did not show the Honduran government would
consent or acquiesce in his torture, as opposed to just being generally ineffective at
preventing crime.
PETITION DENIED IN PART AND DISMISSED IN PART.
2 While evidence of past persecution creates the rebuttable presumption of future
persecution, see Aden v. Wilkinson, 989 F.3d 1073, 1085 (9th Cir. 2021), Petitioner
has not separately argued that he will suffer future persecution.

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