Francisco Lovato v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO E. LOVATO, No. 13-71144
Petitioner, Agency No. A092-715-109
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Francisco E. Lovato, a native and citizen of El Salvador, 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”). Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of
law, Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir. 2012), and we review
for substantial evidence the agency’s findings of fact, Silaya v. Mukasey, 524 F.3d
1066, 1070 (9th Cir. 2008). We deny in part and dismiss in part the petition for
review.
Lovato does not challenge the agency’s dispositive finding that his asylum
application is time-barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60
(9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief
are waived). Thus, we deny the petition as to Lovato’s asylum claim.
Lovato does not challenge the agency’s finding that he failed to establish
past persecution, and substantial evidence supports the agency’s finding that
Lovato failed to establish it is more likely than not that he would be persecuted on
account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.
2010) (petitioner’s desire to be free from harassment or random violence has no
nexus to a protected ground); see also Fakhry v. Mukasey, 524 F.3d 1057, 1066
(9th Cir. 2008) (evidence did not compel a finding of future persecution). We lack
jurisdiction to consider Lovato’s claim based on a drug and gang war in El
Salvador because he did not raise it to the agency. See Sola v. Holder, 720 F.3d
1134, 1135 (9th Cir. 2013) (petitioner must exhaust issues or claims in
administrative proceedings below). Thus, we deny the petition as to Lovato’s
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withholding of removal claim.
Substantial evidence supports the agency’s denial of Lovato’s CAT claim
because he failed to establish it is more likely than not that he would be tortured by
the El Salvadoran government, or with its consent or acquiescence. See Silaya,
524 F.3d at 1073.
Finally, we lack jurisdiction to consider Lovato’s contentions regarding his
cancellation of removal claim because he failed to raise the issue before the BIA.
See Sola, 720 F.3d at 1135.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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