NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID BARZILAI VELASQUEZ

MIRANDA, Petitioner,

v. WILLIAM P. BARR, Attorney General,

Respondent. No. 16

- 71291 Agency No. A077

- 459

- 955

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 7, 2019 ** Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges. David Barzilai Velasquez

- Miranda (“Velasquez

- Miranda”) , a native and
citizen of Guatemala , petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing Velasquez

- Miranda’s appeal from an immigration judge’s (“IJ”) decision denying Velasquez

- Miranda’s application for asylum,

* 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

AUG 28 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 71291

wit h holding of removal , and relief under the Convention Against Torture (“CAT”)

. Our jurisdiction is governed by 8 U.S.C. § 1252(a) , and we deny in part and dismiss in part the petition. We review de novo questions of law, 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. Zehatye v. Gonzales , 453 F.3d 1182, 1184

- 85 (9th Cir. 2006). We review de novo our jurisdiction. Pena v. Lynch , 815 F.3d 452, 455 (9th Cir. 2016).
V ela squez - Miranda’s asylum claim is not properly before this court because
Vela squez - Miranda waived it before the IJ and did not present it to the BIA, and
therefore the claim is not exhausted. See Bar ron v. Ashcroft , 358 F.3d 674, 677

- 78 (9th Cir. 2004) ( court lacks jurisdiction to review claims not presented to the agency). The BIA did not err in finding that Velasquez

- Miranda did not establish membership in a cognizable social group. See Reyes v. Lynch , 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to d emonstrate 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)3 16

- 71291

socially distinct within the society in question’” (quoting Matter of M

- E

- V

- G

- , 26 I. & N. Dec. 227, 237 (BIA 2014)) )

. Substantial evidence supports the agency’s conclusion that Velasquez

Miranda otherwise failed to establish he would be persecuted 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”)

. Thus, Velasquez

- Mira nda ’s withholding of removal claim fails. Substantial evidence supports the agency’s denial of CAT relief because Velasquez

- Miranda failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if re turned to Guatemala

. See Aden v. Holder , 589 F.3d 1040, 1047 (9th Cir. 2009).
PETITION FOR REVIEW DENIED in part ; DISMISSED in part
.