NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICARDO GABRIEL HERNANDEZMARTINEZ, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 16-73475 

Agency No. A206-673-212 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 7, 2020**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges. 

Ricardo Gabriel Hernandez-Martinez, 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 

* 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

APR 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review 

questions of law de novo, 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 review for substantial evidence the agency’s factual findings. 

Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part 

and dismiss in part the petition for review.

Substantial evidence supports the agency’s determination that HernandezMartinez failed to establish past persecution based on the events his mother 

experienced. See Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) 

(“An applicant alleging past persecution has the burden of establishing that (1) his 

treatment rises to the level of persecution; (2) the persecution was on account of 

one or more protected grounds; and (3) the persecution was committed by the 

government, or by forces that the government was unable or unwilling to 

control.”). Substantial evidence also supports the agency’s determination that 

Hernandez-Martinez failed to establish an objectively reasonable fear of future 

persecution based on these events. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th 

Cir. 2003) (possibility of future persecution “too speculative”).

Substantial evidence supports the agency’s determination that HernandezMartinez failed to establish that the harm he experienced or fears from organized 
3 

criminal groups was or would be on account of a protected ground. See 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 determining that Hernandez-Martinez failed to 

establish membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 

1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular 

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))); see also Barbosa v. Barr, 926 F.3d 1053, 

1059-60 (9th Cir. 2019) (concluding that “individuals ‘returning to Mexico [from] 

the United States [who] are believed to be wealthy’” was too broad to constitute a 

cognizable social group); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 

2016) (concluding “imputed wealthy Americans” returning to Mexico did not 

constitute a particular social group). To the extent Hernandez-Martinez proposes 

new particular social groups, we lack jurisdiction to consider them. 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, Hernandez-Martinez’s withholding of removal claim fails. 
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Substantial evidence supports the agency’s denial of CAT relief because 

Hernandez-Martinez failed to show that 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).

The record does not support Hernandez-Martinez’s contentions that the 

agency ignored evidence and misapplied the law.

We do not reach Hernandez-Martinez’s contentions regarding eligibility for 

asylum, credibility, and changed country conditions. See Najmabadi v. Holder, 

597 F.3d 983, 986 (9th Cir. 2010) (the court’s review is limited to the actual 

grounds relied upon by the BIA).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.