Franklin Adriel Rochac-Garcia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANKLIN ADRIEL ROCHAC-GARCIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-70437
Agency No. A201-429-072
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Franklin Adriel Rochac-Garcia, 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
* 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
JAN 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 20-70437
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
the legal question of whether a particular social group is cognizable, except to the
extent that deference is owed to the BIA’s interpretation of the governing statutes
and regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir.
2020). We review for substantial evidence the agency’s factual findings. Id. at
1241. We deny in part and dismiss in part the petition for review.
The BIA did not err in concluding that Rochac-Garcia did not establish
membership in a cognizable particular social group. 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))). We lack jurisdiction
to consider Rochac-Garcia’s contention regarding the proposed social group he
raised for the first time in his opening brief 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).
Substantial evidence supports the agency’s determination that Rochac-
Garcia otherwise failed to establish that the harm he experienced or fears was or
would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007,

-- 2 of 3 --

3 20-70437
1016 (9th Cir. 2010) (a petitioner’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 do not consider Rochac-Garcia’s contentions as to the government of El
Salvador being unwilling or unable to control his persecutors or that the harm he
experienced rose to the level of persecution. See Santiago-Rodriguez v. Holder,
657 F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the
BIA).
Thus, Rochac-Garcia’s asylum and withholding of removal claims fail.
Substantial evidence also supports the agency’s denial of CAT relief because
Rochac-Garcia failed to show it is more likely than not he would be tortured by or
with the consent or acquiescence of the government if returned to El Salvador. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The stay of removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

-- 3 of 3 --