Mario Diaz-Estrada v. Eric Holder, Jr. , 424 F. App'x 699 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIO ALBERTO DIAZ-ESTRADA No. 10-71279
and DILCIA ELIZABETH TOMASINO-
JIMENEZ, Agency Nos. A094-795-352
A094-795-348
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
**
Submitted March 8, 2011
Before: FARRIS, LEAVY and BYBEE, Circuit Judges.
Petitioners Mario Alberto Diaz-Estrada and Dilcia Elizabeth Tomasino-
Jimenez, husband and wife and natives and citizens of El Salvador, petition for
review of a Board of Immigration Appeals streamlined order affirming an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
immigration judge’s (IJ) decision denying their application for asylum,
withholding of removal and protection under the Convention Against Torture
(CAT). Our jurisdiction is governed by 8 U.S.C. § 1252. We deny in part and
dismiss in part the petition for review.
Substantial evidence supports the IJ’s denial of asylum and withholding of
removal because Diaz-Estrada failed to show his alleged persecutors threatened
him on account of a protected ground. His fear of future persecution based on an
actual or imputed anti-gang or anti-crime opinion is not on account of the protected
ground of either membership in a particular social group or political opinion.
Ramos Barrios v. Holder, 581 F.3d 849, 854-56 (9th Cir. 2009); Santos-Lemus v.
Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008). Moreover, being a victim of
criminal gang activity is not a protected ground. See Ochave v. INS, 254 F.3d 859,
865 (9th Cir. 2001) (“Asylum generally is not available to victims of civil strife,
unless they are singled out on account of a protected ground.”) We decline to
address petitioners’ unexhausted contention that gang members targeted Diaz-
Estrada for persecution on account of his membership in a family social group.
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000) (declining to consider
a claim that Board did not have first opportunity to consider).
2 10-71279
Because petitioners have not “specifically and distinctly argued and raised”
the issue of CAT relief, they have waived that claim. Castro-Perez v. Gonzales,
409 F.3d 1069, 1072 (9th Cir. 2005).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 10-71279