Esvin Monzon-Villatoro v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESVIN MONZON-VILLATORO, AKA No. 16-72237
Esbin Moncon,
Agency No. A095-811-364
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Esvin Monzon-Villatoro, 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 (“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).
Our jurisdiction is governed by 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 review de novo questions of law, Cerezo v. Mukasey,
512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to
the BIA’s interpretation of the governing statutes and regulations, Simeonov v.
Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We dismiss in part and deny in part
the petition for review.
Monzon-Villotoro does not challenge the BIA’s determination that he
waived his challenge to the IJ’s findings that asylum was untimely and that he was
ineligible for CAT relief. 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). We lack jurisdiction to consider Monzon-Villotoro’s contentions
regarding the merits of the IJ’s findings. See Barron v. Ashcroft, 358 F.3d 674,
677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to
the agency). Thus, we deny the petition for review as to Monzon-Villotoro’s
asylum and CAT claims.
We do not consider Monzon-Villotoro’s property owner social group claim
because the BIA did not decide the issue, see Santiago-Rodriguez v. Holder, 657
F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA),
and Monzon-Villotoro does not contend the BIA erred in finding that his social
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group claim was not properly before it, see Martinez-Serrano, 94 F.3d at 1259-60.
Substantial evidence supports the agency’s determination that Monzon-Villotoro
failed to establish the harm he fears would be on account of his family social
group. See 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”);
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”). The agency did not err in finding
that Monzon-Villotoro’s social group based on perceived wealth was not
cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to
demonstrate membership in a particular social group, “[t]he applicant must
‘establish that the group is (1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question.’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
227, 237 (BIA 2014))). Thus, Monzon-Villatoro’s withholding of removal claim
fails.
As stated in the court’s September 23, 2016 order, the temporary stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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