FIDEL MERCADO ESPINOZA, AKA Roberto Gutierrez Sanchez v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDEL MERCADO ESPINOZA, AKA
Roberto Gutierrez Sanchez,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-72953
Agency No. A077-584-556
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
Fidel Mercado Espinoza, 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 (“IJ”) 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).
FILED
SEP 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-72953
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th
Cir. 2014). We deny the petition for review.
Substantial evidence supports the agency’s determination that Mercado
Espinoza failed to establish that any harm he experienced or fears in Mexico was
or would be on account of a protected ground, including membership in a
particular social group. 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.”); see also 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)). Thus, his asylum and withholding of removal claims fail.
The BIA did not err in declining to consider Mercado Espinoza’s arguments
regarding a new social group that he raised for the first time to the BIA. See
Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (BIA did not err in
declining to consider argument raised for the first time on appeal); see also Matter
of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 190-91 (BIA 2018) (where the IJ did
not have an opportunity to make relevant factual findings, the BIA cannot do so in
the first instance on appeal).

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3 18-72953
Substantial evidence supports the agency’s denial of CAT relief because
Mercado Espinoza 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 Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
In light of this disposition, we need not reach Mercado Espinoza’s remaining
contentions. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts
and agencies are not required to decide issues unnecessary to the results they
reach).
Mercado Espinoza’s motion to hold the case in abeyance (Docket Entry No.
20) is denied.
PETITION FOR REVIEW DENIED.

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