NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS ALBERTO FAJARDO, 

Petitioner, 

 v. 

ROBERT M. WILKINSON, Acting 

Attorney General, 

Respondent.

No. 15-71650 

Agency No. A205-720-071 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 16, 2021

**

Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.

Luis Alberto Fajardo, a native and citizen of Guatemala, petitions pro se for 

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

from an immigration judge’s (“IJ”) decision denying his application for asylum, 

withholding of removal, and relief under the Convention Against Torture (“CAT”). 

* 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

FEB 18 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-71650 

Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo the legal 

question of whether a particular social group is cognizable, except to the extent 

that deference is owed to the BIA’s interpretation of the governing statutes and 

regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We 

review for substantial evidence the agency’s factual findings. Id. at 1241. We 

deny in part and dismiss in part the petition for review. 

Fajardo does not challenge the BIA’s dispositive determination that his 

asylum application is time-barred. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 

1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s 

opening brief are waived). Thus, we deny the petition for review as to Fajardo’s

asylum claim.

The BIA did not err in concluding Fajardo failed to establish membership in 

a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th 

Cir. 2016) (in order to demonstrate membership in a particular social 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))). To the extent Fajardo raises a new particular social 

group in his opening brief, we lack jurisdiction to consider the claim because he 

failed to raise it to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 
3 15-71650 

2004) (court lacks jurisdiction to review claims not presented to the agency). 

Substantial evidence supports the BIA’s determination that Fajardo failed to 

establish that the harm he suffered or fears in Guatemala 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”). 

Thus, Fajardo’s withholding of removal claim fails.

Fajardo does not raise, and has therefore waived, any challenge to the BIA’s 

determination that he waived review of the IJ’s denial of CAT relief. See LopezVasquez, 706 F.3d at 1079-80. We lack jurisdiction to consider Fajardo’s 

contention as to the merits of his CAT claim because he did not raise this

contention to the BIA. See Barron, 358 F.3d at 677-78. Thus, Fajardo’s CAT 

claim fails.

We do not consider Fajardo’s contention as to his eligibility for cancellation 

of removal or a waiver of inadmissibility under INA section 212(h) because the 

BIA did not reach that issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829

(9th Cir. 2011) (review limited to the grounds relied on by the BIA), and Fajardo 

//
4 15-71650 

does not contend the BIA erred in finding that claim was not properly before it, see

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

contest issue in opening brief resulted in waiver).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.