Jasiel Lopez Diaz v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASIEL LOPEZ DIAZ, No. 19-71346
Petitioner, Agency No. A206-673-009
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Jasiel Lopez Diaz, 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 withholding of removal
and relief under the Convention Against Torture (“CAT”). Our jurisdiction is
governed by 8 U.S.C. § 1252. We review factual findings for substantial evidence.
*
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).
Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part
and dismiss in part the petition for review.
We do not consider Lopez Diaz’s asylum 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 Lopez Diaz does
not contend the BIA erred in concluding that his asylum claim was not properly
before it where he is in withholding-only proceedings, see Corro-Barragan v.
Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening
brief resulted in waiver).
Substantial evidence supports the determination that Lopez Diaz failed to
establish that the harm he experienced or fears in Mexico was or would be on
account of a protected ground. 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”); Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (“To
establish a nexus to the political opinion ground, the [petitioner] must show (1) that
[he] had either an affirmative or imputed political opinion, and (2) that [he was]
targeted on account of that opinion.”); Grava v. INS, 205 F.3d 1177, 1181 n.3 (9th
Cir. 2000) (“Purely personal retribution is, of course, not persecution on account of
political opinion.”). To the extent Lopez Diaz raises a new particular social group
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based on imputed political opinion, we lack jurisdiction to consider that claim. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to review claims not presented below). Thus, Lopez Diaz’s withholding of
removal claim fails.
Substantial evidence also supports the denial of CAT relief because Lopez
Diaz failed to show it is more likely than not he would be tortured by or with the
consent or acquiescence of the government if returned to Mexico. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Wakkary v. Holder, 558
F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).
The temporary stay of removal remains in place until issuance of the
mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise
denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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