NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO JIMENEZ-MARCIAL, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 17-70194

Agency No. A092-932-321

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 31, 2022**

Pasadena, California

Before: M. SMITH and R. NELSON, Circuit Judges, and DRAIN,*** District 

Judge.

Petitioner Roberto Jimenez-Marcial, a native and citizen of Mexico, 

petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of 

* 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 Gershwin A. Drain, United States District Judge for 

the Eastern District of Michigan, sitting by designation.

FILED

SEP 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

the immigration judge’s (“IJ”) denial of his applications for asylum, withholding of 

removal, and relief under the Convention Against Torture (“CAT”). We have 

jurisdiction pursuant to 8 U.S.C. § 1252. Wang v. Sessions, 861 F.3d 1003, 1007

(9th Cir. 2017). We review for substantial evidence the BIA’s factual findings. 

Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014); Shrestha v. Holder, 590 F.3d 

1034, 1039 (9th Cir. 2010). Substantial evidence means the factual finding is 

“supported by reasonable, substantial, and probative evidence in the record.” 

Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). We deny the petition. 

1. The BIA affirmed the IJ’s denial of asylum as untimely because the 

asylum application was not filed within one year of Jimenez-Marcial’s arrival in 

the United States and he did not establish that he qualified for an exception to the 

filing deadline. Because Jimenez-Marcial did not raise any arguments related to 

the untimeliness of his asylum application in his opening brief, he has waived this 

claim. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013). 

We deny the petition as to the asylum claim because the timeliness of the 

application is dispositive.

2. Jimenez-Marcial argues the BIA erred in affirming the IJ’s conclusion 

that he did not prove his eligibility for withholding of removal because he did not 

show the persecution he feared was on account of membership in a cognizable 

particular social group. Even if Jimenez-Marcial established a cognizable 
3

particular social group, the BIA correctly concluded he could not show the 

required nexus between past and future harm and a protected ground based on his

membership in his three claimed particular social groups. The record before the 

BIA was that Jimenez-Marcial was targeted in Mexico City because the La

Marineros gang wanted his assistance with their criminal enterprise, including for 

bank robbery, and not because of his membership in any of the three claimed

particular social groups. Jimenez-Marcial testified that he was targeted only after 

his parents left for the United States because the gang targets young boys that are 

abandoned by their parents. He testified that when he refused to rob a bank for the 

gang, they beat him and warned him not to tell authorities about their plan.

Jimenez-Marcial also testified that the neighborhood kids in Oaxaca harassed and

beat him because he was from Mexico City, as well as pressured him to join their

ranks.

This testimony supports the conclusion that the gang members were 

motivated by other reasons, such as their financial gain, rather than based on 

Jimenez-Marcial’s three claimed particular social groups. See Zetino v. Holder, 

622 F.3d 1007, 1016 (9th Cir. 2010) (“[a]n alien’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.”). 
4

3. Finally, the BIA correctly concluded Jimenez-Marcial failed to 

establish that it is “more likely than not” that he will be tortured by or with the 

acquiescence of Mexican officials. “Acquiescence of a public official requires that 

the public official, prior to the activity constituting torture, have awareness of such 

activity and thereafter breach his or her legal responsibility to intervene to prevent 

such activity.” 8 C.F.R. ' 1208.18(a)(7). Acquiescence is shown for purposes of 

CAT protection when they are likely to “turn a blind eye to torture.” Zheng v. 

Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003). 

Jimenez-Marcial did not present any evidence that he would be tortured

upon his return to Mexico, or that the Mexican government acquiesced in any

alleged torture. Jimenez-Marcial testified that his aunt went to the police and filled

out a report after he was beaten by the La Marineros gang, but the police did not do

anything to punish the perpetrators. “Evidence that the police were aware of a

particular crime, but failed to bring the perpetrators to justice, is not in itself

sufficient to establish acquiescence in the crime.” Garcia-Milian v. Holder, 755

F.3d 1026, 1034 (9th Cir. 2014); see also Andrade-Garcia v. Lynch, 828 F.3d 829,

836-37 (9th Cir. 2016)(“[A] general ineffectiveness on the government’s part to

investigate and prevent crime will not suffice to show acquiescence.”). Because 

Jimenez-Marcial failed to present compelling evidence that any government 
5

official will likely torture him or acquiesce in his torture by gangs, he is not 

entitled to CAT protection. 

PETITION FOR REVIEW DENIED.