Victor Tisol-Matul v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR MANUEL TISOL-MATUL, AKA No. 16-70467
Victor Tisol Vargas,
Agency No. A087-991-717
Petitioner,
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2022**
San Francisco, California
Before: BYBEE and R. NELSON, Circuit Judges, and BOLTON,*** District
Judge.
*
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).
***
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
Victor Manuel Tisol-Matul (“Tisol-Matul”), a native and citizen of
Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”)
decision dismissing an appeal from an order of an immigration judge denying his
applications for withholding of removal and protection under the Convention
Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and
we deny the petition.
We review the agency’s factual findings, including the agency’s
determination that a petitioner does not qualify for withholding of removal, under
the highly deferential “substantial evidence” standard. See Zetino v. Holder, 622
F.3d 1007, 1015–16 (9th Cir. 2010) (reviewing nexus determination under
substantial evidence standard); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992),
superseded by statute on other grounds, 8 U.S.C. § 1252(b)(4)(B). A factual
finding “is not supported by substantial evidence when ‘any reasonable adjudicator
would be compelled to conclude to the contrary’ based on the evidence in the
record.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en
banc) (quoting Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)); see also 8
U.S.C. § 1252(b)(4)(B).
1. Substantial evidence supports the agency’s conclusion that gang
members targeted Tisol-Matul because he resisted their demands that he leave his
job, meaning they targeted him for “economic and personal reasons” rather than on
2
account of his political opinion.1 See Barrios v. Holder, 581 F.3d 849, 855–56 (9th
Cir. 2009) (quoting Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008)),
abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir.
2013) (en banc); Elias-Zacarias, 502 U.S. at 482 (affirming that persecution must
be “on account of” a protected ground in order to warrant relief); Zetino, 622 F.3d
at 1016 (a petitioner’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”).
2. Because Tisol-Matul did not contest the agency’s findings regarding
his social group or his CAT claim in his briefing before this Court, he has forfeited
these claims. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (affirming
general rule that the court does not review claims absent from opening brief)
(citation omitted).
PETITION DENIED.
1
We do not have jurisdiction to evaluate Tisol-Matul’s imputed political opinion
claim because he did not exhaust it before the agency. See Arsdi v. Holder, 659
F.3d 925, 928–29 (9th Cir. 2011) (quoting Zara v. Ashcroft, 383 F.3d 927, 930 (9th
Cir. 2004) (“[F]ailure to raise an issue in an appeal to the BIA constitutes a failure
to exhaust . . . and deprives this court of jurisdiction . . . .”).
3