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 2020-09

David Garcia Lopez v. William Barr ( 2020 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                        SEP 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID NEFTALIN GARCIA LOPEZ,                    No.    14-73593
Petitioner,                     Agency No. A206-269-439
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 22, 2020**
Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.
David Neftalin Garcia Lopez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s decision denying his applications for asylum,
*
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).
withholding of removal, and protection under the Convention Against Torture
(“CAT”).
We have jurisdiction under
    8 U.S.C. § 1252
    . We review for substantial
evidence the agency’s factual findings. Zehatye v. Gonzales,
    453 F.3d 1182
    , 1184-
85 (9th Cir. 2006). We deny the petition for review.
We lack jurisdiction to review the agency’s determination that Garcia Lopez
did not demonstrate changed or extraordinary circumstances sufficient to excuse
his untimely asylum application because Garcia Lopez failed to challenge that
determination before the BIA. See Barron v. Ashcroft,
    358 F.3d 674
    , 677-78 (9th
Cir. 2004). We also lack jurisdiction to review Garcia Lopez’s claim that the
agency committed legal error by “mischaracterizing his particular social group, and
therefore, failed to make a case specific determination as to whether his particular
social group is recognized by Guatemalan society” because Garcia Lopez did not
raise this argument before the BIA. See
    8 U.S.C. § 1252
    (d)(1); Sola v. Holder,
    720 F.3d 1134
    , 1135-36 (9th Cir. 2013) (the Court lacks jurisdiction to consider
unexhausted claims that could have been corrected by the BIA).
Substantial evidence supports the agency’s conclusion that Garcia Lopez
failed to establish he 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
2                                    14-73593
members bears no nexus to a protected ground”). Thus, Garcia Lopez’s
withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT protection
because Garcia Lopez 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).
Finally, because we do not consider the additional evidence submitted with
Garcia Lopez’s reply brief, the government’s motion to strike (Docket Entry No.
28) is denied as moot. See Fisher v. INS,
    79 F.3d 955
    , 963 (9th Cir. 1996) (en
banc) (this court’s review is limited to the administrative record underlying the
BIA’s decision).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3                                   14-73593