NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID BARZILAI VELASQUEZMIRANDA, 

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, CLERK

U.S. COURT OF APPEALS
2 16-71291 

withholding 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).

Velasquez-Miranda’s asylum claim is not properly before this court because

Velasquez-Miranda waived it before the IJ and did not present it to the BIA, and 

therefore the claim is not exhausted. See Barron 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 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) 
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 VelasquezMiranda 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-Miranda’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 returned to Guatemala. 

See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). 

PETITION FOR REVIEW DENIED in part; DISMISSED in part.