Alfredo Ernesto Cabrera- Vasquez v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFREDO ERNESTO CABRERA-
VASQUEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 15-72890
Agency No. A205-289-658
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Alfredo Ernesto Cabrera-Vasquez, a native and citizen of Guatemala,
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
* 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).
FILED
DEC 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Against Torture (“CAT”). 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 dismiss in part
and deny in part the petition for review.
The BIA did not err in finding that Cabrera-Vasquez 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 Barrios v. Holder, 581 F.3d 849,
854-55 (9th Cir. 2009) (holding young Guatemalan men who resist gang
recruitment is not a particular social group). To the extent Cabrera-Vasquez raises
a proposed particular social group based on characteristics that he did not raise
before the agency, we lack jurisdiction to consider it. 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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Cabrera-Vasquez does not challenge the BIA’s findings that he failed to
establish an anti-gang opinion or that he was outspoken against the gangs. 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). Substantial
evidence supports the agency’s conclusion that Cabrera-Vasquez otherwise failed
to establish he was or would be persecuted on account 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”). Thus, Cabrera-Vasquez’s
asylum and withholding of removal claims fail.
Substantial evidence also supports the agency’s denial of CAT relief because
Cabrera-Vasquez 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 Guatemala. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also 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).
We lack jurisdiction to consider Cabrera-Vasquez’s contentions as to
prosecutorial discretion because he failed to raise the issue before the agency. See
Barron, 358 F.3d at 677-78.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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