NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID NEFTALIN GARCIA LOPEZ, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 14-73593 

Agency No. A206-269-439 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted September 22, 2020**

Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.

David Neftalin Garcia Lopez, a native and citizen of Guatemala, petitions 

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his 

appeal from an immigration judge’s decision denying his applications 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

SEP 24 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-73593 

withholding of removal, and protection under the Convention Against Torture 

(“CAT”). 

We have jurisdiction under 8 U.S.C. § 1252. We review for substantial 

evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-

85 (9th Cir. 2006). We deny the petition for review.

We lack jurisdiction to review the agency’s determination that Garcia Lopez 

did not demonstrate changed or extraordinary circumstances sufficient to excuse 

his untimely asylum application because Garcia Lopez failed to challenge that 

determination before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th 

Cir. 2004). We also lack jurisdiction to review Garcia Lopez’s claim that the 

agency committed legal error by “mischaracterizing his particular social group, and 

therefore, failed to make a case specific determination as to whether his particular 

social group is recognized by Guatemalan society” because Garcia Lopez did not 

raise this argument before the BIA. See 8 U.S.C. § 1252(d)(1); Sola v. Holder, 720 

F.3d 1134, 1135-36 (9th Cir. 2013) (the Court lacks jurisdiction to consider 

unexhausted claims that could have been corrected by the BIA). 

Substantial evidence supports the agency’s conclusion that Garcia Lopez 

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 
3 14-73593 

members bears no nexus to a protected ground”). Thus, Garcia Lopez’s 

withholding of removal claim fails.

Substantial evidence also supports the agency’s denial of CAT protection

because Garcia Lopez 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).

Finally, because we do not consider the additional evidence submitted with 

Garcia Lopez’s reply brief, the government’s motion to strike (Docket Entry No. 

28) is denied as moot. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en 

banc) (this court’s review is limited to the administrative record underlying the 

BIA’s decision). 

PETITION FOR REVIEW DISMISSED in part; DENIED in part.