Oswaldo Martinez-Aguilar v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSWALDO MARTINEZ-AGUILAR,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72086
Agency No. A096-470-581
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2022**
Before: WALLACE, TALLMAN, and BYBEE, Circuit Judges.
Oswaldo Martinez-Aguilar, 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 (“IJ”) decision denying his applications for
withholding of removal and protection under the Convention Against Torture
* 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).
FILED
DEC 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We review for substantial evidence factual findings. Conde Quevedo v. Barr, 947
F.3d 1238, 1241 (9th Cir. 2020). We dismiss in part and deny in part the petition
for review.
We lack jurisdiction to consider Martinez-Aguilar’s contentions that he
established eligibility for withholding of removal or CAT protection based on past
harm or fear of future harm by his father because he failed to raise them before the
BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner
must exhaust issues or claims in administrative proceedings below).
As to his fear of criminals other than his father, substantial evidence
supports the BIA’s determination that Martinez-Aguilar failed to establish he was
or would be persecuted on account of a protected ground. See INS v. Elias-
Zacarias, 502 U.S. 478, 483 (1992) (an applicant “must provide some evidence of
[motive], direct or circumstantial”); see also 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”). We reject as unsupported by the record Martinez-Aguilar’s
contentions that the IJ and BIA misapplied the law or otherwise erred in the nexus
analysis. In light of this disposition, we need not reach Martinez-Aguilar’s

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contentions regarding the determination that he failed to establish a cognizable
particular social group. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.
2004) (courts and agencies are not required to decide issues unnecessary to the
results they reach). We lack jurisdiction to consider Martinez-Aguilar’s
contentions as to the particular social groups he raises in the first instance in his
opening brief because he failed to raise them to the BIA. See Barron, 358 F.3d at
677-78. Thus, Martinez-Aguilar’s withholding of removal claim fails.
Substantial evidence supports the BIA’s denial of CAT protection because
Martinez-Aguilar failed to show it is more likely than not he will be tortured by or
with the consent or acquiescence of the government if returned to Mexico. See
Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of
torture). We reject as unsupported by the record Martinez-Aguilar’s contentions
that the IJ and BIA failed to consider evidence or otherwise erred in the analysis of
his CAT claim.
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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