JOSE DAVID CHAJON-REYES, AKA David Chagon, AKA David Chajon, AKA Jose David Chajon,… v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE DAVID CHAJON-REYES, AKA
David Chagon, AKA David Chajon, AKA
Jose David Chajon, AKA David Jose
Reyes,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 15-73111
Agency No. A092-353-800
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 28, 2023**
Before: O’SCANNLAIN, KLEINFELD, and SILVERMAN, Circuit Judges.
Jose Chajon-Reyes petitions for review of a final order of removal denying
his applications for statutory withholding of removal and relief under the
FILED
SEP 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. §
1252(b)(1). We review the denial of relief from removal for substantial evidence,
Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005), and the due process claim
de novo, Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010). We lack
jurisdiction to consider the unexhausted procedural due process claim. Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). However, we have jurisdiction to
consider whether the record contains an indicia of mental incompetency because
the Board sua sponte considered the issue. Kin v Holder, 595 F.3d 1050, 1055 (9th
Cir. 2010). We dismiss the unexhausted claim and deny the petition for review.
Petitioner’s argument that the Board should not have applied Matter of M-A-
M-, 25 I. & N. Dec. 474 (BIA 2011), to determine whether the record contains an
indicia of mental incompetency lacks merit. This court has “endorsed” the Board’s
decision and standards. Salgado v. Sessions, 889 F.3d 982, 989 (9th Cir. 2018).
The record does not support petitioner’s claim that the Board should have
remanded for a competency determination. The record shows that petitioner
understood the nature of the proceedings and was able to focus on and answer the
immigration judge’s questions. There is no evidence of mental illness, a high level
of distraction, or an inability to stay on topic that might trigger a competence
determination. See id. at 987 (setting forth the standards).
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The Board’s denial of statutory withholding of removal and CAT protection
is supported by substantial evidence. Petitioner’s fear of possible gang violence
because he walks with confidence and has a small tattoo on his wrist is not fear on
account of a protected ground. See Zetino, 622 F.3d at 1016 (holding that fear of
gang violence because gang members might mistake the petitioner’s tattoo as a
sign of gang membership is not fear on account of a protected ground); Arteaga v
Mukasey, 511 F.3d 940, 945 (9th Cir. 2007) (holding that “tattooed gang member”
is not a social group and rejecting a claim that former gang tattoos mark the
petitioner for potential gang persecution). Nor is petitioner’s fear of gang violence
sufficient to establish eligibility for CAT protection. See Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (holding that fear of generalized
criminal violence does not establish that it more likely than not that a petitioner
will be tortured); Medina-Rodriguez v Barr, 979 F.3d 738, 750-51 (9th Cir. 2020)
(holding that evidence that gang tattoos might increase the probability of gang
recruitment is insufficient to show eligibility for CAT relief).
PETITION FOR REVIEW DISMISSED AND DENIED.
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