Sandalio Castro-Aparicio v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDALIO CASTRO-APARICIO, No. 16-72350
Petitioner, Agency No. A079-769-864
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Sandalio Castro-Aparicio, 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 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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of
law. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We review for
substantial evidence the agency’s factual findings. Conde Quevedo v. Barr, 947
F.3d 1238, 1241 (9th Cir. 2020). We deny in part and dismiss in part the petition
for review.
The BIA did not err in concluding that Castro-Aparicio waived his asylum
and CAT claims, see Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019) (no
error in BIA’s waiver determination), and we lack jurisdiction to consider Castro-
Aparicio’s contentions as to the merits of these claims because he did not present
them 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 Castro-
Aparicio failed to establish past persecution. See Baghdasaryan v. Holder, 592
F.3d 1018, 1023 (9th Cir. 2010) (an applicant who alleges past persecution has the
burden of proving that the treatment rises to the level of persecution). Substantial
evidence supports the agency’s determination that Castro-Aparicio failed to
establish that the harm he fears in Mexico would be on account of a protected
ground, including a particular social group. See INS v. Elias-Zacarias, 502 U.S.
478, 483 (1992) (an applicant “must provide some evidence of [motive], direct or
circumstantial”); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
2 16-72350
(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”). To
the extent the particular social group raised in Castro-Aparicio’s opening brief
differs from those raised to the agency, and is therefore raised in the first instance,
we lack jurisdiction to consider it. See Barron, 358 F.3d at 677-78. Thus, Castro-
Aparicio’s withholding of removal claim fails.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 16-72350